Commonwealth v. Coleman
| Decision Date | 19 October 1903 |
| Citation | 68 N.E. 220,184 Mass. 198 |
| Parties | COMMONWEALTH SAME v. COLEMAN. SAME v. WOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dana Malone, Dist. Atty., for the Commonwealth.
Frederick L. Greene and Wm. A. Davenport, for defendants.
The questions of law raised by the bills of exceptions in these two cases are the same in each, and our discussion in the first case will be equally applicable to the second, also. The defendant assigned three grounds for his motion to quash First, because two separate and distinct offenses are set forth in the same complaint; second, because there is no sufficient allegation of the place where the defendant is alleged to have suffered the turkey to be won by throwing dice; third, because there is no allegation as to the person who by the sufferance of the defendant won the turkey, nor any averment that such person's name is unknown.
1. The complaint is founded on Rev. Laws, c. 214, § 8, and the first question is whether one who 'knowingly suffers money or other property to be raffled for in such house, shop or building,' and 'to be won there by throwing or using dice, or by any other game of chance,' is guilty of one offense, under this section, or of two different offenses for each of which he is subject to punishment. We think it pretty plain that this part of the statute describes but one offense, which is knowingly permitting, in a place under one's control, a raffle or lottery, or other game of chance for the disposition of property, to be carried on. Suffering property to be raffled for and suffering it to be won in either of the ways mentioned are only different acts made punishable as different parts or stages of the same offense, and which, singly or together, subject the offender to but one punishment. Such acts may be joined in one count. Com. v. Eaton, 15 Pick. 273; Stevens v. Com., 6 Metc. 241; Com. v. Twitchell, 4 Cush. 74; Com. v. Hall, 4 Allen, 305; Com. v. Nichols, 10 Allen, 199; Com. v. Ferry, 146 Mass. 203-208, 15 N.E. 484.
2. The allegation of the place where the defendant suffered the turkey to be raffled for designates the building distinctly, and is sufficient in form. The contention that there was a variance between the allegation and the proof will be considered later.
3. The answer to the question whether the complaint should give the names of the persons who were permitted to raffle for the turkey, and the name of the person who was suffered to win it by throwing dice, depends upon the nature of the offense described in the statute. The case most favorable to the defendant's contention on this point is Com. v. Sheedy, 159 Mass. 55, 34 N.E. 84, in which it was held, in a prosecution under section 7 of the chapter which is the foundation of this complaint, that a charge of a single act of disposing of a single article by way of lottery must state the name of the person to whom it was disposed of, or must aver that his name is unknown. The offense was treated as consisting of a single act, and the act was treated as necessarily involving the person who received the property. But the case shows that there are decisions upon complaints very closely analogous to the one now before us in which it was held that the name of the person receiving the property need not be given. Com. v. Horton, 2 Gray, 69; Com. v. Harris, 13 Allen, 534; Com. v. Sullivan, 146 Mass. 142, 15 N.E. 491; Com. v. Brockaway, 150 Mass. 322, 23 N.E. 101. In the later case of Com. v. Swain, 160 Mass. 354, 35 N.E. 862, it was held that where the offense is being present in a room, engaged in certain prohibited business, it is not necessary to mention the names of the persons participating in the prohibited acts. The substance of the offense here is knowingly suffering a lottery to be conducted in a place under the defendant's control, and we are of opinion that the rule stated in Com. v. Swain should be applied, rather than the rule in Com. v. Thurlow, 24 Pick. 374, and other similar cases cited in Com. v. Sheedy, ubi supra. The motion to quash was rightly overruled.
4. The defendant contends that there was a variance between the complaint and the proof in two particulars, namely: First, in that it did not appear that the building referred to was occupied by or under the control of the defendant; and, secondly, that it did not appear that a turkey was raffled for and won by throwing or using dice, but only the dead body of a turkey, dressed for use as an article of food. It appeared that the defendant occupied and controlled the hotel building known as the 'Loveland House,' except a small room on the ground floor, which was used for a Chinese laundry.
One question presented is whether, under this statute, there can be a conviction of a person who occupies a building other than a shop, if his occupation or control is of only a part of the building. It has been held, under the statute which punishes as the maintenance of a common nuisance the keeping of a 'building, place or tenement' used for the illegal sale or illegal keeping of intoxicating liquor, that an indictment for the keeping of a building cannot be sustained unless it is proved that the defendant kept the whole building. Com. v. McCaughay, 9 Gray, 296; Com. v. Bossidy, 112 Mass. 277. But this is because of the peculiar language of the statute, which recognizes a distinction between a building and a tenement in a building. The statute now in question is different. It punishes the offense when committed in a 'house, shop or building.' As to the culpability of the occupant, it recognizes no difference between a house and a part of a house, or a building and a part of a building. There is special mention of a shop, but there is no special provision referring to a part of a house or...
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