Charles v. People

By the court. Bronson, Justice. This case cannot be distinguished from that which has been referred to. Since the expiration of the laws authorizing lotteries, they are “ unlawful and common public nuisances,” so far as there may be attempts to carry them on in this state. (1 R. S. 665, § 26.) Conceding, therefore, that this lottery was to have been drawn in the district of Columbia, and that it may have been authorized by the laws by which that district is governed, its tickets cannot legally be sold or advertised for sale in this state. There is a formal defect in this indictment, in the omission to allege that the lottery was one “for the purpose of exposing, setting to sale, or disposing of,” property or money according to the description contained in the seventy-seventh section. But the publication is set forth, and from that it appears that the prizes consisted in sums of money. Upon the ground, therefore, that argumentative pleading in an indictment will not vitiate, (which was settled in The People v. Rynders, 12 Wend. 424,) the judgment of the court below was correct. Judgment affirmed.” Charles brought a writ of error and removed the judgment to this court. [363] First. The facts charged in the indictment do not constitute any offence against the laws‘of the state of New-York. Second. The Revised Statutes, 2nd edition, p. 669, part I, chap. 20, art. 4, sec. 27, forbids the opening, setting on foot, drawing, &c., of any lottery “ within this state” See. The 28th section prohibits the publication of notice of u any such lottery.” The lottery in this case is to be drawn in the district of Columbia, and the prohibition against publishing does not apply. ■ The 36th section forbids giving notice of “ insurance ” of tickets, &c. There is no other section that relates to the giving of notice. Third. In the case of The People v. Sturtevant, in 23rd Wendell, the defendant was charged with “ selling ” tickets—not with “ giving notice.” SU” Is not authority in this court.“IBS. Fourth. The indictment is defective in not. averring for what purpose the lottery in question was set on foot, &c. The statute requires that the lottery shall be cc for the purpose of exposing, setting to sale, or disposing of, any houses, lands, tenements, or real estate, or any money, goods, or things in action.” Biir1 3 Denio, 88, 101; 7 J. R. 434, lottery case; 5 J. R. 327; 2 W. Blackstone, 1093, insurance of lottery tickets not criminal; 7 T. R. 535. Answer—Are no special insurances in criminal cases. 9 Cow. 578. John McKeon, District Attorney and Counsel for defendants in error. First. The 27th, 28th and 29th sections of the statute apply to this indictment. (1 Revised Statutes, 2nd ed., p. 669.) Second. All lotteries are forbidden by our constitution, and are nuisances and illegal by statute. Grand juries are to be charged in relation to them. (1 Revised Statutes, 669, sec. 26; 671, sec. 41.) Third. Advertising a lottery and the sale of lottery tickets [364] are within the 27th section of the revised statutes, which forbids the formation of any lottery within this state. The section does not declare that the lottery shall be drawn within this state,. The language of the statute is, that no person within this state shall open, set on foot, carry on, promote or draw, &c. (1 Revised Statutes, 669, sec. 29.) Fourth. It does not appear on the face of the indictment that the lottery was to be drawn in Alexandria, in the district of Columbia. On the contrary, the advertisement set forth in the indictment was for the sale of tickets in the Union Lottery, to be decided by the drawing of the Alexandria Lottery. (Page 5 of Record.) Fifth. Previous to the constitution of 1821 it was settled that a lottery instituted by the laws of another state is within the act to prevent private lotteries. (Hunt v. Knickerbocker, 5 Johnson R. 327.) Insurance of tickets in a lottery, established by law of this state, having been declared illegal, the insurance of tickets in a foreign lottery was held illegal; such insurance being contrary to the policy indicated by the former act. (Mount & Wardell v. Waite, 7 Johnson R. 434.) Sixth. From reasons in the cases referred to, it is clear that the provisions of the revised statutes under which the indictment has been framed, extend to all cases, whether the lottery advertised is athorized by the laws of this state or not. The offence is diearly against the policy of the law. Seventh. The case of The People v. Sturtevant'clearly sustains this indictment; all lotteries being now illegal, it is unnecessary to aver that the lottery was not expressly authorized by law. (People v. Sturtevant, 23 Wend. 418; 3 Denio, 95; 5 Pick. 41, 42; 6 N. H. 53.) Eighth. The indictment sets forth in extenso the advertisement, and from the indictment it is apparent that the prizes consisted of sums of money. Argumentative pleading will not vitiate. (People v. Rynders, 12 Wendell, 425 ; 5-Hills Rep. 249; 2 R. S. 609; Barbour, 279; 5 Wend. 271.) Decision.—Judgment affirmed, unanimously. [365] Note.—Held, "that the words “ such illegal lottery ” in the 28th section of the statute (1 R. S. 665) relate not solely to the particular kind described in the 27th section, but to all lotteries ; as all are by the 26th section declared to be “unlawful and common and public nuisances.” (See People v. Sturtevant, 23 Wend. 418.) Consequently, in an indictment for such an offence, drawn under § 28, a general averment of publication is sufficient. But it was not necessary to directly and expressly allege in the indictment that the lottery, of which the defendant published an account, was opened or set on foot for the purpose of disposing of money or other property, as that fact appeared from the advertisement set out in the indictment; and according to the decision in The People v. Rynders (12 Wend. 425) was good pleading in criminal cases. Reported, 1 Comstock, 180.