City of Shreveport v. Kahn

• Decision Date: 30 November 1914
• Docket Number: 20930
• Citation: 136 La. 371,67 So. 35
• Court: Louisiana Supreme Court
• Parties: CITY OF SHREVEPORT v. KAHN. In re KAHN

67 So. 35

136 La. 371

CITY OF SHREVEPORT v. KAHN.

In re KAHN

No. 20930

Supreme Court of Louisiana

November 30, 1914

Rehearing Denied January 11, 1915

SYLLABUS

(Syllabus by the Court.)

Act No 169 of 1894 sufficiently defines the offense of conducting a lottery, and is not invalid because it does not define the word 'lottery.' This term has no technical meaning in the law distinct from its popular signification (quoting Words and Phrases, Lottery).

A 'lottery' is a scheme for the distribution of prizes by chance. Held, that the gambling device commonly called a 'punch board' is a lottery (citing Words and Phrases, Lottery).

Held, that section 12 of Act No. 107 of 1902, grading the offense of conducting a lottery business and fixing the minimum and maximum penalties therefor, is in accord with the direction to the General Assembly contained in article 155 of the Constitution of 1898.

Held, that Act No. 280 of 1914, amending and re-enacting section 12 of Act No. 107 of 1902, has not two distinct objects, and therefore does not violate article 31 of the Constitution.

Looney & Wilkinson, of Shreveport, for applicant.

W. A. Mabry, Dist. Atty., and Scheen & Blanchard, all of Shreveport, for respondent.

OPINION

LAND, J.

The relator was charged in the city court of the city of Shreveport on affidavit, as follows:

'Did unlawfully sell or otherwise dispose of and offer to sell or otherwise dispose of and have in his possession with intent to sell or otherwise dispose of lottery tickets, lottery policy, or combination or device or other writing, token or certificate, or token, pretending or intending to entitle the holder or bearer to a premium or prize drawn or to be drawn.'

The bill of particulars reads as follows:

'The device, lottery tickets, policy, or token certificate entitling the holder to a premium or prize being a certain board perforated with holes, which holes are covered with paper, and in each hole is deposited a number or ticket, there being 600 holes containing said numbers, or tickets upon said board, and in addition thereto on said board are 12 prizes, being gold finished pencils, of the value of $ 2.50 each, and on said board opposite each of said prizes is a number corresponding with some concealed number in the holes aforesaid; and any person by paying five cents to punch in any hole selected by him secures the number or ticket in such hole, and, if the ticket or number there drawn by him from said hole should correspond with the number on said board set opposite said prize or gold finish pencil, he gets the pencil free without further costs, and, if his said number does not so correspond, he in that event gets a package of chewing gum which retails for five cents.'

The prosecution was instituted under Act No. 280 of 1914, to amend and re-enact section 12 of Act No. 107 of 1902, entitled an act to grade misdemeanors, etc., which said section graded the offense of conducting a lottery business, except in those cases provided for in section 1 of Act 169 of 1894. Section 1 of said act provides a penalty for establishing or conducting a lottery in this state, and section 2 provides a penalty for selling, or otherwise disposing of, any lottery ticket, policy, combination, device, writing, certificate, or token purporting or intended to entitle the holder, bearer, or any other person, to any prize or premium, or share or interest therein, drawn or to be drawn, etc.

The defendant moved to quash the affidavit and charge on the following grounds:

(1) That the affidavit does not state the facts on which the charges are based.

(2) That the affidavit and bill of particulars 'does not show any crime known to the laws of Louisiana.'

(3) That if said prosecution is based on section 12, Act 107 of 1902, then said section is unconstitutional, in that the title thereof purports to grade misdemeanors, and that there are no graduations in so far as the offense relative to lotteries is concerned, and moreover is unconstitutional for the reason that it is an attempt to amend Act 169 of 1894, which in itself is unconstitutional.

(4) That if the prosecution is based on Act 280 of 1914, then the same is unconstitutional because the matter attached thereto is not cognate to section 12 of Act 107 of 1902, is upon an entirely different subject-matter, and is not covered by the title as required by article 31 of the Constitutions of 1898 and 1913.

(5) That if the prosecution is based on Act 169 of 1894, then the same is unconstitutional, because it provides two punishments for the same offense, does not define the crimes to be denounced, and that the acts here charged are no covered by the title of said act; that said act violates articles 15 and 16 of the Constitution of 1879, articles 16 and 17 of the Constitutions of 1898 and 1913, in that it does not define the crimes sought to be punished, and places the court in a position to be required to perform legislative functions, and that for the same reason section 12 of Act 107 of 1902 and Act 280 of 1914 are unconstitutional.

In a supplemental motion to quash, the defendant pleaded that Act No. 169 of 1894 is unconstitutional because its title embraces more than one object, and denounces or attempts to denounce more than three separate and distinct offenses in violation of article 29 of the Constitution of 1879, and article 31 of the Constitutions of 1898 and 1913; that section 12 of Act 107 of 1902 and Act No. 280 of 1914, if considered as amendments to Act 169 of 1894, is unconstitutional, because said act is unconstitutional; but, if not so considered, then section 12 of Act 107 of 1902, is not covered by the title of said act as required by article 31 of the Constitutions of 1898 and 1913, and Act 280 of 1914 is likewise unconstitutional for the further reason that it attempts to amend and re-enact an unconstitutional statute.

The judge of the city court, for written reasons assigned, overruled the motion to quash; and on the trial of the case found the defendant guilty, and sentenced him to pay a fine of $ 10 and costs or ten days in jail. Whereupon, the defendant took an appeal to the district court.

The district judge affirmed the judgment. Thereupon the defendant invoked the supervisory jurisdiction of this court.

It appears that the case was tried in the district court on the following statements of fact:

'The accused, Rafe Kahn, owns a cigar stand and operates with it a punch board perforated with holes, which holes are covered with paper, and in each hole is deposited a number, there being 600 holes in said board containing said numbers; that on said board there are 12 gold finished pencils of the value of $ 2.50 each, and opposite such pencil is a number corresponding with some concealed number in the holes aforesaid. Any person buying five cents worth of cigars, chewing gum, pencils, or other goods, kept at the cigar stand, has the privilege of punching one of these holes and taking the number therefrom. If such number corresponds with one of the numbers opposite the gold finished pencil, the purchaser then and there receives such pencil; but, if the number does not correspond with the one opposite the pencils, the purchaser only receives the goods bought by him.'

The respondent judge, in answer to the contention that under the facts the defendant violated no law of this state, says, in part, as follows:

'It is contended by the defendant that this law was only aimed at lotteries like the old State Lottery Company, which issued tickets signed by them, and which on its face entitled the holder to a chance in some prize to be drawn; but the reading of the statute very clearly shows that it was intended to and does cover any kind of ticket or token that entitles or is intended to entitle the holder to (a) premium or prize.'

'It is contended further that he does not sell or have for sale the ticket bearing a number, but that he only sells the right to punch out one of the numbers from this board; but it is clearly shown, and even admitted, that, if the number of the slip of paper thus punched out corresponds with the number opposite a pencil, the purchaser gets the pencil as a prize.'

'Of course, this is merely a subterfuge to try to deceive some one into believing that the ticket with the number on it is not sold. Who would want a punch at the board except to secure the number, and who would want to secure the number unless there was an opportunity to win something by having it. That is the incentive to the whole, and that is what is paid for.'

The respondent judge cites State v. Boneil, 42 La.Ann. 1110, 8 So. 298, 10 L. R. A. 60, 21 Am. St. Rep. 413, and City of New Orleans v. Collins, 52 La.Ann. 973, 27 So. 532.

In the Boneil Case, a city ordinance made it unlawful for any person to sell or otherwise dispose of any lottery ticket, or token, policy, combination, device, or certificate, in any lottery drawn or to be drawn in or out of the city of New Orleans. The defendant in that case was engaged in selling 'Enterprise Tea' inclosed in sealed envelopes. In addition to the tea, some of the envelopes contained a ticket naming and entitling the holder to some other article. The purchaser upon the payment of five cents was at liberty to select an envelope from any of the lot exposed on the counter; and, if the envelope contained besides the tea a ticket, the holder was entitled to the article mentioned upon it. The court, through Fenner, J., held that the scheme was undoubtedly a lottery. The court, in part, said:

'A lottery 'is a distribution of prizes and blanks by chance; a game of hazard, in which small sums are ventured for the chance of obtaining a larger value, either in money or in other articles.' Worcester's...