McDaniels v. State

• Decision Date: 25 October 1916
• Docket Number: No. 23082.,23082.
• Citation: 113 N.E. 1004,185 Ind. 245
• Parties: McDANIELS v. STATE.
• Court: Indiana Supreme Court

185 Ind. 245

113 N.E. 1004

McDANIELS

v.STATE.

No. 23082.

Supreme Court of Indiana.

Oct. 25, 1916.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Jesse L. McDaniels was convicted of an offense against the lottery law, and appeals. Reversed with instructions.Frank C. Groninger and Taylor E. Groninger, both of Indianapolis, and Ella M. Groninger, of Indianapolis, for appellant. Evan B. Stotsenburg, Atty. Gen., and Omer S. Jackson and Wilbur T. Gruber, Asst. Attys. Gen., for the State.

ERWIN, J.

An indictment was returned against appellant by the grand jury of Marion county, charging him with the misdemeanor of “aiding and abetting a lottery scheme and gift enterprise.”

The motion to quash the indictment for the reason that it failed to state facts sufficient to constitute a public offense was overruled by the court. Appellant was then put to trial before the court without the intervention of a jury, which resulted in a finding of guilty as charged, and that he be fined in the sum of $250.

The errors relied upon for the reversal of this cause are the overruling of the motion to quash the indictment, and the overruling of the motion for a new trial.

The indictment is as follows (omitting the caption):

“The grand jurors for the county of Marion and state of Indiana, upon their oaths, present that Jesse L. McDaniels on the 14th day of June, A. D. 1915, at and in the county of Marion and state aforesaid, did then and there unlawfully aid and abet persons, whose names to the grand jurors are unknown, to engage in a certain lottery scheme and gift enterprise by then and there manufacturing for sale and distribution to persons whose names to the grand jurors are unknown, a certain gambling device called the ‘Series or Weekly Baseball Tally Card,’ each of said cards bearing a serial number and containing therein a coupon, which coupon bore the serial number of the daily tally card to which it was attached, and which coupon contained certain numbers which entitled the holder thereof to a chance in said lottery scheme and gift enterprise for the distribution of a certain sum of lawful money of the United States, the exact amount of said money and a more particular description thereof is to the grand jurors unknown, and therefore cannot be given, and the plan and scheme for the division and distribution of said sums of money by said lottery scheme or gift enterprise is to the grand jurors unknown and cannot be given, and the exact mode of operating such lottery scheme and gift enterprise further than described, is to the grand jurors unknown and cannot be given, contrary to the forms of the statutes in such case made and provided, and against the peace and dignity of the state of Indiana.”

[1] It is insisted by the Attorney General that the failure of appellant to comply with the rules of the Civil Code in not filing with his motion to quash a memorandum of reasons why the indictment fails to state facts sufficient to constitute a public offense, that therefore no question is presented for the consideration of this court, on the motion to quash.

In a case recently decided by this court it was held that it was not necessary to so append such memorandum. Robinson v. State, No. 22915, decided June 22, 1916, 113 N. E. 306, 307.

[2] The statute on which this prosecution is based is section 2464, Burns' 1914, and reads as follows:

“Whoever sells a lottery ticket or tickets, or a share or shares in any lottery scheme or gift enterprise, or acts as agent for any lottery scheme or gift enterprise, or aids or abets any person or persons...