Commonwealth v. Sheedy

Lathrop, J. The indictment in this case charges that the defendant, at a time and place stated, “ did dispose of one suit of clothing of the value of thirty-five dollars by way of lottery.” Pub. Sts. c. 209, § 1. While the indictment follows the language of the statute, yet, as it charges a specific act, this is not enough. [56] The defendant is entitled to have the offence set out with the usual precision and certainty. The name of the person to whom the suit of clothing was disposed of should be alleged, or, if he is unknown, this fact should be stated. This has been held to be the rule in regard to an illegal sale of liquor. Commonwealth v. Thurlow, 24 Pick. 374, 379. Commonwealth v. Kimball, 7 Met. 304, 308. And in Commonwealth v. Moore, 11 Cush. 600, it was held that an indictment for letting a tenement to be used for purposes of prostitution must state the name of the person to whom the tenement was let, or that such person was to the jurors unknown. In Commonwealth v. Horton, 2 Gray, 69, on which the government relies, the offence charged was the setting up of a lottery. See also Commonwealth v. Harris, 13 Allen, 534; Commonwealth v. Sullivan, 146 Mass. 142. In Commonwealth v. Brockway, 150 Mass. 322, no objection was made to the form of the indictment. For the reasons above stated, we are of opinion that the defendant’s motion to quash the indictment should have been granted. Exceptions sustained.