Hudelson v. State

• Decision Date: 04 April 1884
• Docket Number: 11,509
• Citation: 94 Ind. 426
• Parties: Hudelson et al. v. The State
• Court: Indiana Supreme Court

94 Ind. 426

Hudelson et al. v. The State

No. 11,509

Supreme Court of Indiana

April 4, 1884

From the Henry Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

D. W Chambers, J. S. Hedges and F. W. Fitzhugh, for appellants.

F. T Hord, Attorney General, and G. W. Duncan, Prosecuting Attorney, for the State.

Zollars J. Elliott, J. Hammond J., concurs with Elliott, J.

OPINION

Zollars J.

Section 2078, R. S. 1882. is as follows: "Whoever writes, prints, advertises, or publishes in any way, an account of any lottery, gift enterprise, or scheme of chance of any kind or description, by whatever name, style, or title the same may be denominated or known, stating when or where the same is to be drawn, or the prizes therein or any of them; or the price of a ticket; or showing therein where any ticket may be obtained; or in any way giving publicity to such lottery, gift enterprise, or scheme of chance,--shall be fined not more than five hundred dollars nor less than ten dollars."

Appellants were convicted upon an indictment which charges them with having unlawfully written, advertised and published an account of a gift enterprise. The prosecution is based upon the above statute. The publication is set out in full in the indictment. The material portion is as follows: "Gents' Furnishing Store. Our New Year's presents for our patrons. We will give to the purchaser of fifty cents worth, or more, of goods from our stock, who guesses nearest to the number of beans contained in the glass globe on exhibition in our window, a gold watch, * * * which can be seen in our show window, commencing on Saturday, November 17, 1883, and until Tuesday, January 15, 1884. Every purchaser of goods to the amount of fifty (50) cents, or more, will receive a ticket which will entitle the recipient to one guess for the gold watch." Following this is a statement as to the committee of three persons who had put the beans into the globe; also a certificate of the committee that they had deposited the beans and sealed up the glass globe without knowing the number of beans so deposited; also a certificate as to the character and value of the watch. The purpose of the gift is stated to be the advertisement of the stock of goods, and thus draw visitors and patrons. A motion to quash the indictment was overruled. This ruling is one of the errors assigned in this court.

The contention of appellant's counsel is, that the enterprise, as set out in the publication, is not a lottery, nor in the nature of a lottery or gift enterprise. That to arrive at the correct number of beans in the glass globe is not a matter of chance, but of mathematical calculation. We can not concur in this view. An expert mathematician might compute the dimensions of the glass globe with a reasonable degree of certainty. Necessarily, the result could be but approximately correct. To be mathematically correct, the exact thickness of the glass would have to be known. This exactness could not be attained by an observation of the sealed globe. Here would necessarily be an element of guessing. And if the exact size of the globe were known, it would be utterly impossible, by the application of mathematical rules, or by any other means, to calculate the number of beans contained in it. The size of the several beans, so far as they could be observed, would be a matter of pure guessing. And besides, only those on the surface and next to the glass could be seen. Those in the center might be smaller or larger. In short, there could be no fixed and definite fact or quantity upon which to base a mathematical calculation or demonstration. The number of beans in the globe could be nothing else than a matter of guessing. An expert mathematician might more nearly fix the size of the globe than an entirely uneducated person. And so he, and persons of better judgment, might more nearly fix the number of beans in the globe than persons of less judgment; yet the exact number would be a mere matter of guessing. That any one should guess the correct number would be a matter of the merest chance, because there are no means of attaining to a certainty.

Whether the enterprise set out in the publication be called a scheme of chance, a gift enterprise, or a lottery, it is still a scheme of chance, and in that sense a lottery or gift enterprise. Lohman v. State, 81 Ind. 15.

The watch was to be given to the person who should come nearest guessing the correct number of the beans. Who that might be would be purely a matter of chance. Whether that person might guess the correct number, would be a matter of chance. Chance was to settle the ownership of the watch. And thus the enterprise was to be a lottery. "A lottery is a scheme for the distribution of prizes by chance--a game of hazard, in which small sums are ventured for the chance of obtaining a larger value, either in money or other valuables." Winfield's Adjudged Words and Phrases, p. 377.

"Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery." Hull v. Ruggles, 56 N.Y. 424.

"A lottery is a scheme for the distribution of prizes by chance." Dunn v. People, 40 Ill. 465. See also State v. Clarke, 33 N.H. 329.

It makes no difference that the ticket was to be procured by the purchase of goods. Lohman v. State, supra; State v. Mumford, 73 Mo. 647 (39 Am. R. 532); United States v. Olney, 1 Abb. U.S. 275.

The indictment, we think, was sufficient to withstand the motion to quash.

The tenth instruction given by the court is as follows: "You have no right to determine the question whether the facts stated in the indictment constitute a public offence, or to determine the sufficiency of the indictment. If the facts stated in the indictment are proven beyond a reasonable doubt, you must convict."

It is insisted that this instruction is an invasion of the rights of the jury, and an infraction of section 19 of article 1 of the State Constitution, which declares that in all criminal cases whatever the jury shall have the right to determine the law and the facts.

We can see no escape from this view, unless the instruction is so limited and modified by others as to remove the objections urged against it. The Constitution declares, in the broadest and most imperative terms, that in all criminal cases the jury shall have the right to determine the law as well as the facts. This right has been recognized and enforced in its broadest seope by many decisions of this court. It is made the duty of the court to instruct the jury as to the law in the case, and at the same time inform them that they are the judges of the law. Section 1823, R. S. 1881. It has been held that the instructions to the jury...