Freleigh v. State

• Decision Date: 31 July 1844
• Citation: 8 Mo. 606
• Parties: FRELEIGH v. THE STATE.
• Court: Missouri Supreme Court

8 Mo. 606

FRELEIGH

v.THE STATE.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

E. BATES, for Appellant.

First. The venue ought to have been changed. The petition and affidavits are, I believe, in exact conformity to law. The only ground of refusal taken by the Criminal Court was, that it did not appear that the auxiliary affiants were respectable. I contend, that, as nothing appears against them, they must be presumed respectable: in the sense of the law, respectable means credible; and all competent witnesses are credible until successfully impeached.

Second. The cases ought to have been continued on the affidavits filed. They are ample--covering the whole ground. See the record.

Third. In each case, the verdict was wrong, and ought to have been set aside. 1. The charge is for selling a ticket, and there is no proof nor attempt to prove a consideration. 2. The ticket alleged to have been sold is not identified, so as to distinguish it from any other ticket. 3. The charge in each count is for selling a ticket, and the testimony is, one quarter of a ticket. Our own statute makes an obvious distiction, between tickets and parts of tickets. See Rev. Code, title Lotteries: and the case of Shankland v. Washington City, 5 Peters' R. 390, will serve to show a great practical difference between the two instruments. Remark here, that the last act (1842) is cumulative, and does not repeal the law in the Revised Code. The two acts do not cover the same ground, and were not passed for the same object.

Fourth. All the counts charge the selling of a ticket in a lottery, and there is no testimony tending to show that there was a lottery. This I take to be conclusive: if the party had sold a ticket of a pretended lottery, he might perhaps be indicted for obtaining money by false pretenses; but surely not for selling a ticket in a lottery which did not exist. The existence of such lottery was a material fact, and the prosecutor having alleged it, the burden of proof was on him. 1. In Freleigh's case, he was found guilty on all three counts, when obviously there was no testimony as to but one: and the counts are not variations of the same charge, but distinct offenses--sales of tickets in different lotteries, and to different persons. Also, the instruction prayed by Freleigh was lawful and right, and the instruction volunteered by the court was illegal and wrong. Also, a witness was called back and examined, against the rule laid down in Mary v. The State. 2. In Manning's case, the jury did not find all the issues. They found him guilty on the second count, and said nothing on the first, and this is equally good for a new trial, and in arrest of judgment.

Fifth. The judgment ought to have been arrested. The indictment is bad. 1. In not setting out the tenor of the ticket. Whenever a written instrument forms a part of the gist of the charge, it must be set out verbatim. See Archbold's Crim. Pl. 45; 2 Russell on Crimes, 359; and 2 East's Pl. 975. 2. But if the failure to set out the tenor may be excused, still, it must be so described as to be distinguished from all others of the like sort. 3. It is not affirmatively and distinctly alleged, that there was a lottery in which the sold ticket was. The existence of such lottery is an indispensable fact, and it is a general rule that indictments under statutes must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it. 1 Chitty's Crim. L. 282, cited and approved by this court in Comfort's case, 5 Mo. R. 358, and in Martin's case, ibid. 361. 4. As to Manning's case, the verdict disposes of only one count, and so no judgment could be rendered with the other half of the indictment standing open. 5. It is a rule that hardly admits of exception, that indictments must be so drawn, that if the facts charged be true, the defendant cannot be innocent, and this court has recognized the rule in Martin's case and in Hunter's case, 5 Mo. R. 360-1. And here it is matter of law, that New Franklin had the right to have lotteries whose tickets might be sold without any breach of law. See the act to incorporate New Franklin, 16th January, 1833 (new edition Mo. Laws, vol. 2, p. 328). True, the act of February 8, 1839, p. 30, professes to modify and put conditions to the grant; and the act of December 19, 1842, professes totally to repeal it. But those acts are illegal and void, in so far as they attempt to resume the grant of the lottery franchise. See Territt v. Taylor et al., 9 Cranch, 43 (3 Cond. R. 254); Dartmouth College v. Woodward, 4 Wheat. 518 (Cond. R. 526). There is also a case in 1 Sumner's R. strongly bearing on same point, but I have not the book; the case is largely quoted in a late number of the Western Law Journal. NOTE.-- The Criminal Court of St. Louis has adjudged that the Hospital lottery is legal.

Sixth. The penal act of 1842 makes it criminal to sell lottery tickets-- in the plural; so, if the party sell only a single ticket, he can only be punished under the law of 1835, and that exempts all lotteries theretofore authorized. The courts of England have recognized this objection in their interpretation of the act 14 Geo. II., ch. 6. See Archbold's Crim. Pl. 51, 52; 1 Blacks. Com. 88.

NAPTON, J.

The plaintiff in error was indicted at the May term, 1843, of the Saint Louis Criminal Court, for vending a lottery ticket in the New Franklin Railroad Lottery. The indictment contained three counts: the first count charged, that the defendant “did unlawfully sell to one Charles D. Gillespie a certain lottery ticket, in a certain lottery not authorized by the laws of this State, called the Franklin Railroad Lottery (which said lottery ticket was then and there taken and kept by the said Gillespie, so that the jurors aforesaid cannot set forth the tenor or substance thereof), contrary to the form of the statute,” &c. The second and third counts differ only from the first in describing the lottery as the New Franklin Railroad Lottery, and charging that the ticket was sold to a person to the jurors unknown.

Upon the application of the defendant, the case was continued until the July term; at which time the defendant applied for a change of venue, making the affidavit required by the statute in such cases, accompanied by two other affidavits, in which the affiants stated their belief of the truth of all the matters sworn to by the defendant. The court examined the two compurgators of the defendant upon their voir dire, touching their means of knowledge, and the grounds on which they rested their belief, as sworn to in their affidavits, and refused to award the change of venue prayed for, because it did not appear that the said affiants were respectable persons, as required by law.

When the cause was called for trial, on a subsequent day of the same term, the defendant applied for a continuance. supporting his motion by an affidavit. This affidavit states, in substance, that the witness, on account of whose absence a postponement of the trial was desired, was material; that there was no other witness in attendance by whom the defendant could prove the same facts; that the residence of the witness in New Franklin, in Howard county, but that since the last term of this court the witness had been absent in the South; that affiant had written to New Orleans, where he learned the witness had gone, for the purpose of taking his deposition, but had as yet received no answer. The affidavit contains the other statements usual in such cases, in relation to diligence; his expectation of procuring the deposition or attendance of the witness by the next term; and the absence of all improper motives, on the part of the affiant, in making the application. The affidavit also details the testimony which he expects the witness to give. The facts proposed to be proved are, that the witness is a member of the board of trustees of the town of New Franklin; that the board, having authority so to do, entered into a contract with one W. T. Phillips, conveying, for sufficient consideration, to said Phillips, the lottery privilege secured by the act of Assembly of this State, approved 16th January, 1833, and constituting the said Phillips attorney in fact, with full power to manage or sell the lottery privilege so granted; that said Phillips, on the 27th February, 1841, for valuable consideration, transferred to Granville B. Marshall and Joseph B. Smith said privilege, and that the sum of fifteen thousand dollars has not been realized from the sale of tickets in said lottery.

The motion for a continuance was overruled, upon the trial; a witness proved that he had purchased a quarter ticket from the defendant, in St. Louis, in the New Franklin Railroad Lottery; that the ticket read thus: “This ticket will entitle the holder to one quarter of such prize as may be drawn to its number,” &c. After the witness had left the stand, and after the defendant's attorney had closed his remarks to the jury, to obviate some objections made by the defendant's counsel, the witness, at the instance of the circuit attorney, was recalled, and testified, that his name was Charles D. Gillespie. The defendant offered no testimony, but asked the court to instruct the jury, that if they believed, from the evidence, that the defendant sold a quarter ticket, not a full ticket, as charged in the indictment, they must find for the defendant. The court refused this instruction, but gave other instructions, upon which no question is raised. The jury found the defendant guilty, and assessed his punishment at six months' imprisonment, in the county jail, and a fine of one thousand dollars.

The defendant moved for a new trial, for various reasons, which, as they are all relied on, in the assignment of errors, it is unnecessary to detail here. A motion was also made in arrest of judgment. Both motions were overruled, and exceptions duly...