Loiseau v. State

• Decision Date: 19 May 1897
• Citation: 114 Ala. 34,22 So. 138
• Parties: LOISEAU v. STATE.
• Court: Alabama Supreme Court

22 So. 138

114 Ala. 34

LOISEAU v. STATE.

Supreme Court of Alabama

May 19, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Earnest Loiseau was indicted, tried, and convicted for setting up and operating a slot machine in violation of Acts 1896-97, p 901, and appeals. Affirmed.

J. A W. Smith and Tillman & Campbell, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

COLEMAN J.

The indictment against the defendant contains three counts, the first charging that the defendant did unlawfully set up carry on, or operate a device of chance, to wit, a slot machine; the second, that he did unlawfully sell chances in a device of chance, to wit, a slot machine; and the third, that defendant did set up, or was concerned in setting up or carrying on, a lottery, to wit, a slot machine. The defense is rested upon an ordinance of the city of Birmingham which included in its schedules of licenses slot machines, and an act of the legislature (Acts 1896-97, p. 901) which "ratified, approved and confirmed" the schedule of licenses established by the board of mayor and aldermen of the city of Birmingham. Article 4, § 26, of the constitution of the state, reads as follows: "The general assembly shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery in this state; and all acts, or parts of acts, heretofore passed by the general assembly of this state, authorizing a lottery or lotteries and all acts amendatory thereof, or supplemental thereto, are hereby avoided." The defendant had set up a slot machine in his store, and it and its operation are described as follows: "It was a box-shaped arrangement, in the top of which was a slot, into which a nickel was dropped. There was a lever on the machine, which was pressed down after the nickel was placed in the slot, and when the lever was released the machinery in the box or machine caused the cards to revolve on a cylinder, and when the revolution ceased the cards could be read by a bystander. That on the said occasion three certain parties went into said store, and each of them dropped five nickels in the slot, and pressed the lever after each nickel was dropped in. That the said parties agreed among themselves that the one after whose play the machine would indicate the highest card hand should have all the cigars which the said nickels purchased. That the said defendant had furnished from his stock of cigars a nickel cigar for each nickel which was put into the machine by said three parties, and when it was determined by working the lever as aforesaid which one of the three parties had made the highest score, as indicated by the cards on the machine, the defendant delivered to such party cigars to the amount, and equal in value to the amount, of nickels put into the machine." This is the substance of all the evidence. That the parties were guilty of gambling, and were within the prohibition of the general law of the state, is not seriously controverted; but it is contended that the slot machine, as operated, was not a lottery, and that the legislature had authority to license such gambling. We are unable to assent to this conclusion. Calling it, by name, a "slot machine," instead of a "lottery machine," does not vary its character; nor does the fact that parties agreed that the winner should receive the value of the money in cigars, instead of the money itself, exert any influence in determining the character of the winning chance to have been by lot. The three parties agreed between themselves-to which the defendant, the owner and setter up of the machine, was a party-that the highest cards, to be determined by the revolving of the wheel, should win the value of all the money in cigars to be furnished by the defendant, he taking the money. There have been many definitions of "lottery" by the decisions of the various courts, each generally made with reference to the particular...