France v. State
| Decision Date | 30 April 1873 |
| Citation | 65 Tenn. 478 |
| Parties | FRANCE v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM SHELBY.
Appeal from the Criminal Court. JNO. R. FLIPPIN, Judge.
L. B. HORRIGAN for plaintiff.
Attorney-General HEISKELL for the State.
The defendant below was indicted in the Criminal Court of Shelby county in five several cases for selling a lottery ticket. He was convicted in four cases, and acquitted in the fifth. The court pronounced sentence upon him, and he has appealed in error to this court.
Various errors in the proceedings below are assigned by him, and insisted upon in an elaborate argument by his counsel, which we will proceed to notice.
1st. It is said in the first place that the court erred in refusing to quash the several indictments because they are defective in describing the alleged offense. The supposed defects are:
1. That they do not set out the lottery ticket, nor aver any reason for the omission.
2. That they fail to aver where the lottery was to be drawn.
3. That they do not aver the name of the lottery, or the purposes for which the lottery was set on foot or made.
The force of these objections, and of other objections taken to the proceedings in the court below, will be seen by collating the description of the offense as contained in the several indictments with the statute against selling lottery tickets.
The five several indictments are indentical, except that the days on which the several offenses are alleged to have been committed are varied. We copy the material allegations of the first indictment, found in the transcript of the record, which avers “that J. E. France, laborer, late of the county aforesaid, on the 20th day of December, A. D. 1871, in the county aforesaid, did unlawfully then and there sell to one Mike Garvin a lottery ticket, a more particular description of which is to the grand jurors unknown,” etc.
Sec. 4890 of the Code is in the words following: “If any person vend, or attempt to vend, directly or indirectly, any lottery ticket in this State in any scheme to be drawn in this or any other State or county, he is guilty of a misdemeanor, and, on conviction, shall be fined $500, and imprisoned one month in the county jail.”
It may further be remarked, that this legislation is in pursuance of sec. 5, art. 11 of the Constitution of Tennessee, which provided that the Legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this State.
It may further be remarked that the Constitution of 1834 contained the same provision, and was held to be itself a prohibition of lotteries: Meigs' R., 421.
It will be seen from the foregoing provisions that the people of Tennessee have thought this species of gaming an evil of sufficient magnitude as to positively inhibit it by the fundamental law. And it is further seen that the Legislature has carried out the Constitutional provision by an enactment broad enough in its terms to cover any possible infraction of the fundamental law.
In the case of The People v. Taylor, Bronson, Chief Justice, said: In a state where there was no authorized lottery, an indictment was adjudged sufficient on demurrer which merely alleged that the defendant sold a quarter part of a ticket in a certain lottery without giving any description whatever either of the ticket or the lottery: The State v. Follet, 6 N. H., 53.
The Court went upon the ground that as there could be no ticket in any lottery which would not be within the prohibition of the statute, it would be mere surplusage to describe in the indictment either the ticket or the lottery. We have not had access to the case of The State v. Follet above referred to, but the reasoning of it, as given above, is entirely satisfactory to us, and, we think, precisely applicable to our legislation upon the subject. The case from which we have already quoted cites with approbation Commonwealth v. Hooper, 5 Pick., 42, where it was held that in an information for advertising it was not necessary to allege by name, nor was it necessary on the trial to prove what kind of lottery tickets the defendant advertised. Freleigh v. The State, 8 Missouri, 606, is also referred to, in which it was held to be enough in an indictment for selling to say “a certain lottery ticket,” without giving either its tenor or purport.
It is certainly true, however, that in some of the cases to which we have been referred, more particularly in describing the offense is required than is found in this indictment. But this, we think, will be found to result from the difference in the legislation of the several States upon the subject. We are cited, for instance, by the defendant to the case of The People v. Payne, 3 Denio, 88, in which it is held that an indictment for the sale of lottery tickets must set forth the lottery as one set on foot for the purpose of disposing of property, and when we turn to the statute upon the subject, we find that the purpose of setting to sale, or disposing of property, is a part of the statutory description of the offense in that State. In the State of Tennessee, on the contrary, the sale of a ticket in any scheme to be drawn in this or any other State or county is unlawful. And it is no part of the definition of the offense in our statute that it should be set on foot for the purpose of disposing of property. All the decisions, as we think, are grounded upon the rule that in describing an offense created by statute it is sufficient if the indictment uses the words employed by the Legislature in creating and defining the offense.
This is done in the indictment we are considering, and although the language of the statute in defining this offense is very general, we think that the indictment is sufficiently certain to inform the prisoner of the nature of the offense, and identify the criminal transaction imputed to him.
This is the main reason for the requirement of certainty in pleading, and inasmuch as the person to whom and the time when the tickets were sold is specified, the defendant is in no danger of ever being called upon to answer a second time for the offenses charged in these indictments. When a formal trial is pleaded in bar, it is enough to show by the record that the pleadings were such in the first case that the same matter might have come directly in question on the trial, and then to show by extrinsic evidence that it did, in fact, so come in question on that trial.
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State v. Martin
...(Tenn.Crim.App.1987), and (2) when the fine is statutorily specified and allows no judicial discretion in its imposition, France v. State, 65 Tenn. 478, 486 (1873). In the present case, nothing in the record points to a waiver by the defendant of his right to have the fine fixed by the jury......
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...23. City of Chattanooga v. Davis, 54 S.W.3d at 251, 267, 273. 24. City of Chattanooga v. Davis, 54 S.W.3d at 256. 25. France v. State, 65 Tenn. 478, 485 (1873). 26. See also State ex rel. Fuller v. Mullinax, 269 S.W.2d 72, 77 (Mo. 1954); Opinion of the Justices, 304 A.2d 881, 887 (N.H. 1973......
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...Crim. App. 1987), and (2) when the fine is statutorily specified and allows no judicial discretion in its imposition, France v. State, 65 Tenn. 478, 486 (1873)." State v. Martin, 940 S.W.2d 567, 570 (Tenn. Here, the record does not show that the defendants waived this right, nor is a releva......
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