Skiff v. Johnson

Cushing, C. J. “If any person shall make or put up any lottery, or pretended lottery, or shall dispose of or offer, or pretend to dispose of, any money, or property real or personal, by lottery, or in any way such that any hope or expectation of gain by luck or chance is made an inducement to pay for such property, or for any share or chance thereto, he shall be fined from fifty to five hundred dollars.” Gen. Stats., ch. 254, sec. 1. There can be no doubt that these packages might be used in such way as to constitute the offence described in this section ; that is, the purchaser might be induced to purchase in the hope or expectation of gain by luck or chance. This was not the case, however, in regard to the transaction between the plaintiffs and the defendant, because it is expressly found that the defendant knew all about the contents of the packages. But it is said that the whole transaction between the plaintiffs and the defendant was with a view to the unlawful sale by the defendant of the packages put up for that purpose by the plaintiffs. According to the case of Hill v. Spear, 50 N. H. 264, although the plaintiffs would not be affected by the mere knowledge of the unlawful use which the defendant was about to make of the packages, still, if they went further, and at the request of the defendant put up the packages in a convenient form for sales in violation of law, and so actively promoted such sale, they would be, in the eye of the law, offenders; and in such case the defence here set up, though, according to the authority of that case, “ mean and contemptible,” would be in law effectual. Now, there being no dispute about the facts stated, the inference from them that the plaintiffs not only knew of the unlawful use intended to be made of their wares, but actively participated, by their preparation of them by the request of the defendant, is so strong that it seems to me impossible that the referee should have failed to make it,if he liad not in some way misapprehended the law. It would seem that he must have followed the dictum in Hill v. Spear instead of the law of the case, holding the maxim to be ex turpi causa non oritur defensio, and substituting defensio for actio — a mistake of dictum for law which the reports show to have been more than once committed. I am therefore of opinion that the exception should be sustained. The remark has often been made by eminent judges, in delivering their opinion in this class of cases, that such defence is not to be *479 encouraged, or is mean and contemptible, or immoral and dishonest. It does not appear to me that courts of justice have anything to do with such considerations. It is the policy of our law to suppress, as far as possible, the practice of gaming in all its forms. Whether this policy is right, or not, is not a matter for the consideration of this court. A promise by the defendant to pay the plaintiffs for assisting her in the violation of the law, is certainly one which the courts cannot aid in enforcing, and in regard to which juries ought to be so instructed as that they will disregard all such considerations. The proverb,&emdash;“ Honor among thieves,”&emdash;is all very well in ballads of Robin Hood and Friar Tuck, and in fashionable romances of robber life; but the other proverb, &emdash;“ When rogues fall out honest men get their dues,”&emdash;is much more in accordance with the policy of the law, which relies much in its attempts at preventive and punitive justice upon the treachery of knaves towards each other. So long as we attempt to protect the morals and well-being of society by such penal legislation, defences of this kind, in my judgment, ought to be not merely tolerated but encouraged by the courts. However much we may despise the traitor, it is just that the state should take advantage of the treason. Ladd and Smith, JJ., concurred. Exception sustained.