State v. Mumford

• Citation: 73 Mo. 647
• Parties: THE STATE v. MUMFORD, Appellant.
• Decision Date: 30 April 1881
• Court: Missouri Supreme Court

73 Mo. 647

THE STATE

v.MUMFORD, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Jackson Criminal Court.--The case was tried before WILLIAM WARNER, ESQ., sitting as Special Judge.

AFFIRMED

C. J. Bower for appellant.

Defendant offered no prizes for money; he simply said to each subscriber to the newspaper that he could have a gift--a voluntary offering. The price of the subscription remained unchanged. The subscribers received full value for their money, irrespective of the gift. This is no lottery. Governors v. Am. Art Union, 3 Seld. 228; s. c., 13 Barb. 577; People v. Am. Art Union, 3 Seld. 240; State v. Sykes, 28 Conn. 225; 8 Phila. 457; Morris v. Blackman, 2 Hurlst. & Colt. 912; O'Connor v. Bradshaw, 5 Exch. 882; s. c., 20 L. J. Ex. 26; Hull v. Ruggles, 56 N. Y. 424; s. c., 65 Barb. 432; Negley v. Devlin 12 Abb. Prac. (N. S.) 210; Fleming v. Bills, 3 Oregon 286.D. H. McIntyre, Attorney General, for the State.

The fact the defendant did not sell the tickets, but gave them to subscribers only, and that the subscription price of the paper remained the same, does not make the scheme any the less a lottery. Even if the newspaper was worth the subscription, the fact that the premiums drawn by the holders of tickets were not of equal value, and that some tickets drew nothing, would make the distribution a scheme of chance, and, therefore, a lottery. It may safely be asserted that many persons, under such circumstances, would subscribe for the newspaper, prompted by the hope of gain. Thomas v. People, 59 Ill. 160; Dunn v. People, 40 Ill. 466; Com. v. Chubb, 5 Rand. 715; Randle v. State, 42 Tex. 580; 33 N. H. 335; U. S. v. Olney, 1 Deady 461.

NORTON, J.

This cause is here on appeal from the judgment of the criminal court of Jackson county imposing a fine of $25 on defendant. The indictment charges the defendant with unlawfully advertising and causing to be advertised in a certain newspaper published in the City of Kansas, in the county and State aforesaid, known as The Kansas City Times, the drawing of a scheme in a lottery, in and by which a certain piano and divers other pieces of property were to be disposed of by lot or chance, on the 16th day of June, 1877; and the indictment is founded upon section 28, page 503, Wagner's Statutes, which reads as follows: “Any person who shall sell or expose to sale, or shall keep on hand for the purpose of sale, or shall advertise or cause to be advertised for sale, or shall aid or assist, or be in anywise concerned in the sale or exposure to sale of any lottery ticket or tickets, or any share or part of any lottery ticket in any lottery or device in the nature of a lottery, within this State or elsewhere, and any person who shall advertise or cause to be advertised the drawing of any scheme in any lottery, and shall be convicted thereof in any court of competent jurisdiction, shall, for each and every such offense, forfeit and pay a sum not exceeding $1,000.”

The cause was submitted on an agreed statement of facts, which are substantially as follows: Defendant, as business manager of the Kansas City Times Company, in 1877, caused certain advertisements to be published in the Kansas City Times, a newspaper owned and controlled by said company. The general purport of said advertisements was to the effect that four distributions of premiums would be made to the subscribers of said newspaper during the year 1877, amounting to $20,000 personal property, consisting of pianos, books, guns, sewing machines, and many other useful articles, with the value placed opposite each, and that to each subscriber a ticket or tickets would be given, (in accordance with the time of his subscription,) which was good for all the distributions, provided he had not previously had a prize awarded. The allotments of prizes were superintended by a committee selected by the subscribers themselves at each stated distribution, and the committee allotted the gifts to the different subscribers by drawing tags from a large wheel, and then drawing a tag from a small wheel to correspond with one drawn from the large wheel, one representing the number of ticket, the other the number of prize. The whole proceeding of distribution was done without any authority, assistance, suggestion or advice of defendant, except that the Times Company furnished the paraphernalia for...