Lotteries and sales of lottery tickets indictable by statute. Not duplicity to couple stages of of- Enough to follow statute, § 1495. III. EVIDENCE. Intent inferentially proved, § 1497. I. OFFENCES INCLUDED IN STATUTES. § 1490. THE term lottery has a double meaning. It includes not only a scheme for the distribution of prizes by chance, but the distribution itself. At common law neither of these is indictable unless they are nuisances.2 By statute, however, not merely lottery schemes themselves, but sales of lottery tickets, are made indictable in many jurisdictions. The statutes in question being too numerous and too various for analysis, we must content ourselves with noticing some of the more general considerations they involve. clude pri § 1491. Supposing the term "lottery " as a nomen generalissi"Lottery" mum is introduced in a statute, what is included in the does not in- term? In the United States there is a popular usage vate draw- attaching the term to schemes for the distribution of ings by chance. prizes by chance among persons purchasing tickets; the drawing purporting to be from a wheel, on a particular day, which day, with the amount of the intended prizes, is previously announced. But this is but a single form of lottery; the term, 1 See U. S. v. Olney, 1 Abb. (U. S.) 275; Dunn v. People, 40 Ill. 465. 2 See, as ruling that a public lottery is a common law nuisance, Blanchard, ex parte, 9 Nev. 101. in its full sense, embracing all schemes for the distribution of prizes by chance, and including faro tables, and various forms of gambling. At the same time there is a wide distinction between a private and a public offering of prizes by chance. A., B., C., and D. may meet together, and in good faith agree that a certain article to which they have a common claim shall be given to the person who draws a particular number. This is a matter of contract which, if the terms are known to the parties beforehand, has nothing in it repugnant to sound morals, and nothing which can operate on the community as a fraud. When, however, the community at large is invited to come in, a new and very serious objection springs up. Independently of the opportunity for fraud by the managers of such enterprises, their publication imparts an excited spirit of gambling to the public generally. On the one side often ensue gross cases of deception as to the scheme itself; on the other, the sacrifice of savings by the ignorant and credulous, and excitement, destructive of regular industry, often inducing insanity. It is to suppress this species of lottery, we should remember, that the lottery statutes are aimed. The test, therefore, as to any scheme for the distribution of property by chance, is, is it private or public. If a private arrangement be made, by which A., B., C., and D. agree upon the lot as the mode of settling the title to a particular piece of property, this is not a lottery in the penal sense. If they adopt a plan by which all who choose may buy tickets in a prearranged scheme, this is a lottery in the penal sense.1 Hence a "gift enterprise," or a "raffle," in which the public is invited to take shares for the distribution of prizes by chance, is a lottery, no matter how artfully the object may be disguised.2 Nor does it affect the question 1 See 2 Holzendorff's Rechts-Lexicon, Leipzig, 1872, p. 74. 2 U. S. v. Olney, 1 Abbott (U. S.), 275; State v. Clarke, 33 N. H. 329; Com. v. Thacher, 97 Mass. 583; Hull v. Ruggles, 56 N. Y. 424; State v. Shorts, 3 Vroom, 398; Wooden v. Shotwell, 3 Zab. 465; Bell v. State, 5 Sneed, 507; Com. v. Chubb, 5 Rand. (Va.) 715; Dunn v. People, 40 Ill. 465; Eubanks v. State, 3 Heisk. 488. In Thomas v. People, ut supra, it was said by Thornton, J.: "The ticket alone does not constitute a lottery, for we are not informed by it that there would be any distribution of prizes. When, however, we consider it in connection with the advertisement, we ascertain that there will be a distribution at the close of the concerts, and after the sale, of the engravings. The ad that in the scheme there are no blanks.1 Such, for instance, it has been ruled to be the case with a gift sale of books, by which the books were offered for sale at prices above their real value, and by which each purchaser was declared to be entitled in addition to a prize, to be ascertained, after the purchase, by a correspondence, unknown to the purchaser, between certain numbers indorsed in the books offered for sale, and the different prizes proposed.2 The same ruling was made as to the American Art Union; and as to a sale of envelopes, some of which were alleged to contain tickets enabling the holder to purchase valuable property at a nominal price. But we cannot extend this principle to cases where, by private and limited contract, certain : vertisement contains this language "The distribution was to be in a just and legal manner. It should, then, be in an honest, upright, and equitable mode. There should be perfect fairness and equality. This plan would be utterly violated if any one of the numerous purchasers should fail to receive a prize. The distribution could not be in a 'just and legal manner,' unless the number of purchasers was the same as the number of prizes, and the prize received proportional, as nearly as possible, to the amount of money paid. "It is barely possible, but most improbable, that the purchasers would be the same in number as the presents. We could not indulge in so unreasonable a presumption, even in a criminal proceeding. In ordinary affairs, we must reason upon probabilities, deduce conclusions from facts, and not indulge in mere conjecture. We have no right to harbor wild imaginings, to change a reasonable and probable result." 1 Wooden v. Shotwell, 3 Zab. 465. 2 State v. Clarke, ut supra; and see S. P., Hull v. Ruggles, 56 N. Y. 424; Eubanks v. State, 3 Heisk. 488; Thomas v. People, 59 Ill. dle v. State, 42 Tex. 580. v. Bryant, 74 N. C. 207. 1465. 160; Ran See State 8 People v. Art Union, 7 N. Y. 240; Governors, &c. v. Art Union, 7 N. Y. 228. See Morris v. Blackman, 2 Hurl. & Colt. 912. Dunn v. People, 40 Ill. 465. parties unite, according to a plan known to all of them before the drawing, to dispose of designated articles by chance.1 1 Com. v. Manderfield, 8 Phila. 457. In U. S. v. Olney, 1 Deady U. S. 461, we have the following from Deady, J.: "The word 'lottery' is defined and used as follows by lexicographers and writers: 6 lots was a lottery. True the purchasers of tickets or shares were in any event to get something, — at the least, a lot, for the purposes of this scheme estimated to be worth $50. But it is not probable that any one would have purchased a ticket, if it was certain that he would have received nothing in return but one of these so-called fifty dollar lots. If the first three hundred lots could have been sold for fifty dollars each on account of their market value, certainly the defendant "A distribution of prizes and blanks by chance; a game of hazard in which small sums are ventured for the chance of obtaining a larger value either in money or other articles.' Worcester's Dict. "A distribution of prizes by lot would not have been improvident or chance.' Webster's Dict. 666 enough to put the other three hundred prize parcels into market at the same price, while their actual value was from $100 to $5,000 each. This is neither reasonable nor probable." In a case in the N. Y. Ct. of Appeals, in 1876, the action was brought to recover for goods sold and delivered. Defendants claimed that the goods were intended to be used in a lottery. It appeared that the goods sold consisted of a quantity of candies and silverware. The candies were put up by plaintiff in packages, known as prize candy packages, in some of which were tickets, each with the name of a piece of silverware upon it. Defendants intended to sell the packages for more than their value, the purchaser taking the chance of getting a package containing a ticket, in which case he was entitled to the article of silverware named, in addition to the package. It was ruled that this was a lottery within the meaning of the statute, and the sale, having been for the purpose of aiding in a lottery, was void (1 R. S. 668, § 38); the contract of sale was also void and plaintiff could not recover. Hall v. Ruggles, 56 N. Y. 424. As to meaning of "promoting a lot Ticket includes fractions. Indictment must show ticket to be prohibited. § 1492. A ticket, under the statute, includes a quarter of a ticket.1 II. INDICTMENT. § 1493. Where only certain kinds of lottery are prohibited, then the indictment must set forth enough of the scheme of lottery, or of the ticket sold, as the case may be, to individuate the lottery or ticket, and show that the particular scheme or lottery is of the prohibited class.2 It would seem that it is not necessary to set out the full ticket, if enough be given to show it to be illegal. But, as will be seen, if the ticket be set forth, a variance is fatal.4 Where all lotteries are prohibited by law, it has been ruled not to be necessary to set forth the letter of the ticket, or even its purport.5 But, in view of the fact that the term "lottery has such a wide general signification, and that it embraces processes all of which none of the statutes have undertaken to declare penal, to charge simply the organizing of a "lottery," or the sale of a "lottery ticket," is very loose pleading. At all events, the name of the vendee, in case of a sale, should be averred, so as to in some way notify the defendant of the offence with which he is charged. An allegation that the particulars of the "lottery policies" are unknown to the grand jury, and that the vendees are unknown, may supply the want of specification.7 6 It is said, however, that to aver that the lottery was prohibited by law is not necessary in a State where all lotteries are prohibited.8 § 1494. To couple in one count the allegations" offer for sale," and "sell," is not duplicity, and so with "set up and 999 promise.' And it has been held that to sell sev Not duplicity to tery," in the Kentucky statute, see Miller v. Com. 13 Bush, 731. 1 Freleigh v. State, 8 Mo. 606. 2 People v. Taylor, 3 Denio, 99; Com. v. Manderfield, 8 Phila. 457; State v. Scribner, State v. Barker, 2 Gill & J. 246. As to construction of charter, see Boyd v. State, 53 Ala. 601. Com. v. Gillespie, 7 S. & R. 469. 4 Ibid. Infra, § 1496. 5 State v. Follet, 6 N. H. 53; France v. State, 6 Bax. 478. See Com. v. Gillespie, 7 S. & R. 469. 6 Wh. Prec. 486; but see infra, § 1510. 7 Pickett v. People, 8 Hun, 83. 8 People v. Sturdevant, 23 Wend. 418. • Com. v. Eaton, 15 Pick. 273; |