Commonwealth v. Sullivan

• Decision Date: 28 February 1888
• Citation: 146 Mass. 142,15 N.E. 491
• Parties: COMMONWEALTH v. SULLIVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 142

15 N.E. 491

COMMONWEALTH v. SULLIVAN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1888

Indictment against the defendant, John Sullivan charging, in the first count, that he "did set up and promote a certain lottery, the name and more particular description of which said lottery being to said jurors unknown; which said lottery was, then and there, for money; said lottery not being then and there authorized by law in said commonwealth." At the trial in the superior court, the defendant moved to quash the indictment, "because the first count does not allege that the lottery was an unlawful one, or that it was a public lottery; and also because it does not allege that the lottery was for the distribution or disposition of money; also because there is no sufficient description of the lottery and does not set forth any offense plainly, fully, and formally, as required by law." The motion was also made on the ground that none of the counts of the indictment described any offense under the statutes, and were not fully plainly and formally set out, as required by law, in order to notify the defendant of the exact charges against him; and "because, in neither of the counts, is it alleged that it was a lottery for the purpose of disposing of property;" and "in no count is there any sufficient allegation of promotion of a lottery, or sufficient specifications of the acts or methods by which the defendant promoted a lottery." The court sustained the motion as to certain counts of the indictment, and overruled it as to the first and third counts. One Francis H. Walker was then called by the government, and testified that on April 1 1886, he went to a room in building No. 1156, Washington street, Boston. That soon after he got there the defendant came in, took off his coat and hat, and said to one Graham, who was one of a number of men behind a counter writing, "I am ready to go to work." That witness asked him if he was a writer there. That defendant said he was; and, on being asked if he was the proprietor, replied that he was only hired there, and did it for money. That witness asked defendant to whom he should look for his money if he won any; and defendant said he would settle all as soon as the drawings were made. That witness gave him four numbers,--what is called a "horse;" that is, a combination of four numbers from a column of 78. That if witness had given three numbers it would be a "gig." That witness paid 10 cents to defendant. That he saw several other persons give defendant numbers; and give and take money. That defendant gave him (witness,) a ticket, or piece of paper, with 479 on it, which stood for the number of the drawing; each drawing being numbered in a class, and the numbers and the drawings put in envelopes. Witness further testified that he stayed there 10 or 15 minutes, and saw others receive from defendant similar papers with numbers, and give money to him. That defendant stood up and asked if there were any others that wanted to take part in the game and then took an envelope from the wall, took out of it a slip of paper with 12 numbers in each column, the numbers being below 78, turned around, and copied with chalk the numbers on a blackboard, and also the class numbers. That then a man made a claim of $5, and defendant paid him the money from the counter drawer. That defendant continued to write again and witness remained and saw another drawing made in the same way. That the numbers that the persons wanted to give defendant or call out, defendant would write on slips of paper, in place of the money he took from them. That then, when the audience ceased to take part, they made another drawing; that is, defendant took another envelope and took out a drawing just as he did in the other case. The government here asked the witness to describe the game in full,--in detail; but the answer was excluded by the court. On cross-examination, witness testified that one Washington went with him to the room in question on March 31, or April 3, 1886. Defendant's counsel then asked witness the following question: "Didn't Washington charge you with picking up this paper you have produced, and other papers with numbers on them, from the room floor, and proposing to him to go into court and swear that they were bought of defendant and Graham; and didn't Washington say that he wouldn't have anything to do with you on that account?" This question was excluded on objection of the district attorney and defendant excepted. After the evidence was all in, the defendant asked the court to require the government to elect some transaction, complete by itself, on which it would go to the jury on the first count; but the court refused so to rule, and ruled that the government might rely on all the transactions of April 1st; and the defendant excepted. The court also refused to rule that there was not sufficient evidence to convict the defendant on the first count, and ruled that, as matter of law, if the jury should believe the evidence of Walker, which was the only evidence as to the first count, it was a lottery, and a setting up and promoting a lottery, they would be warranted in finding that the defendant was guilty of setting up and promoting a lottery. The court further refused to rule that there was a variance between the evidence and the allegation in the first count. The jury found the defendant guilty upon the first count of the indictment, and he excepted.

COUNSEL

John L. Eldridge and D.F. Fitz, for defendant.

A lottery is a scheme for the distribution of prizes by chance or the distribution itself, "when the latter depends on chance." The court excluded "a full description, in detail, of the game." It is impossible, therefore, to learn from the evidence what the scheme of the game is. There was no evidence of any "scheme," of any "element of chance," or that the distribution depended on chance. The evidence fails to answer any of the following material questions: Was the selection of the envelope arbitrarily made? Did it contain more than one slip with numbers? Was the envelope taken out of a number of envelopes? How or why was that particular envelope selected? Was anything said about any envelope? Did the defendant Walker and any other persons know what numbers were in the envelope? Were any chances sold, and, if so, what chances? In what possible...