Barry v. State
| Decision Date | 27 April 1898 |
| Citation | 45 S.W. 571 |
| Parties | BARRY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Falls county court; William Shelton, Judge.
J. D. Barry was convicted of establishing a lottery, and he appeals. Affirmed.
W. W. Walling and Mann Trice, for the State.
Appellant was convicted of establishing a lottery, and appeals.
The principal contention made is that the state has levied an occupation tax upon lotteries, and therefore the offense denounced against lotteries ceased to be a criminal offense. There are other questions also suggested for our consideration in regard to charges given and refused. The information charges that appellant did "unlawfully establish a lottery, under the name and denomination of `Cheap John Board,' and did then and there dispose of certain personal estate by said lottery." In his motion for a new trial, appellant suggests that the court erred in overruling his motion to quash the information, and refers us to his bill of exceptions numbered 1. Said bill is not incorporated in the record, nor is the motion to quash the information. We are not therefore advised of the grounds of said motion.
The court charged the jury, at the instance of the state, that the establishing of a lottery by a person, notwithstanding the same may be licensed by law, and the license tax paid, is an offense against the law; and, further, that the state has no right to license a lottery, so that in case the jury should believe that, at the time and place mentioned in the information, "defendant carried on and established a lottery, by means of which personal property was disposed of by chance, and that defendant had obtained a license to run the lottery, you will find him guilty." The defendant excepted to this charge, and asked a counter charge,—that "it would not be a violation of the law for a person to keep or operate a knife rack, cane rack, doll rack, or any other device upon which rings are pitched, or at which balls are thrown." The charge asked by defendant is based upon article 5049 of the Revised Statutes of 1895, in force at the time of the trial (1896). That portion of said article is in the following language: "From every person or firm keeping a knife, cane or doll rack, or any other device upon which rings are pitched, or at which balls are thrown, an annual tax of one hundred dollars." The testimony discloses that the defendant kept a stand so constructed that a spindle would be turned on a pivot horizontally....
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