Shelton v. State

• Decision Date: 01 November 1951
• Docket Number: No. 19,19
• Parties: SHELTON v. STATE.
• Court: Maryland Court of Appeals

Page 405

198 Md. 405

84 A.2d 76

SHELTON v. STATE.

No. 19.

Court of Appeals of Maryland.

Nov. 1, 1951.

Ignatius J. Keane, Hyattsville, (Albert R. Hassall, Hyattsville, on the brief), for appellant.

A. T. Hartman, Sp. Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and C. J. Lancaster, State's Atty., Prince George's County, Upper Marlboro, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

Walter S. Shelton, of College Park, has appealed here from a conviction on the charge of violating the local lottery law of Prince George's County. Laws of 1939, ch. 258; Code P.L.L. of Prince George's County, 1943 Ed., sec. 608.

For some years appellant has been the owner and operator of Otto's Bar and Grill in Colmar Manor. On January 16, 1951, at about 10:30 a. m., the bar was visited by the sheriff, two detectives of the county police force, and an informer named John Phillips. The sheriff and Phillips were the first to enter. They bought two beers, and while they were drinking Philips asked the bartender, Herman Johns, whether he could play a number. The bartender handed Phillips a pad and pencil, and Phillips wrote the numbers '513' and '315' on a slip and added '50 cents' in parenthesis, indicating that he was playing 50 cents on each number. Phillips then handed the slip along with a marked dollar bill to the bartender, and the bartender put them in a drawer behind the bar. The sheriff thereupon identified himself and placed the bartender under arrest. The two detectives then walked in, and immediately recovered the slip and the dollar bill from the drawer. They also found in the drawer another slip on which '518' was written. On the cash register back of the counter there were several pads of slips. Sticking in the frame of the mirror above the cash register was a paper displaying '032' in large blue figures. One of the detectives took the bartender to the police station in Hyattsville. About twenty minutes later appellant came into the bar. When questioned by the officers, he asserted that he had no connection with the lottery whatever and did not even know that it was being operated. The officers, however, secured a warrant for his arrest.

The indictment charged that appellant on or about January 16, 1951, 'unlawfully did promote and was concerned in carrying on a lottery' contrary to the statute. The statute provides: 'If any person shall within Montgomery or Prince George's Counties keep, set up, or promote, or be concerned as owner, agent, or clerk, or in any other manner, in managing, carrying on, promoting or advertising, directly or indirectly, any policy lottery, policy shop, or any lottery, * * * he shall be fined upon conviction of each said offense not more than $1,000 or be imprisoned not more than three years or both.' Appellant moved to dismiss the indictment, and the motion was overruled.

At the close of the case appellant moved for a directed verdict of not guilty, but the trial judge overruled the motion and submitted the case to the jury. Appellant was found guilty and was sentenced to the Maryland House of Correction for a term of six months.

First. Appellant claims that the indictment was defective because it did not allege the charge with sufficient particularity. He contends that the indictment should have alleged the particular kind of lottery, such as policy lottery or numbers, which he was accused of promoting or carrying on. It is an essential requisite of every indictment that it shall allege such facts in connection with the commission of the crime as will put the accused on full notice of what he is called upon to defend and establish such a record as will effectually bar a subsequent prosecution for the same crime. State v. Lassotovitch, 162 Md. 147, 150, 159 A. 362, 81 A.L.R. 69; Petrushansky v. State, 182 Md. 164, 32 A.2d 696. However, as we pointed out in State v. Wheatley, 192 Md. 44, 50, 63 A.2d 644, the courts in recent years have come to realize that much of the prolixity which characterized the indictments under the early common law can be disregarded without any infringement of the right of the accused to be informed of the nature of the accusation against him, and so it has become the modern policy of the courts to disregard extremely technical rules and require only that an indictment shall fully allege the essential elements of the crime charged.

The Maryland Code expressly provides that in any indictment for violation of the law prohibiting gaming, or for violation of the law prohibiting the drawing of lotteries or the selling of lottery tickets or other device in the nature thereof, it shall not be necessary to set forth the particular kind of gaming or gaming table, or to set forth the particular scheme of lottery, but it shall be sufficient if the indictment sets forth that the defendant kept a 'gaming table,' or that 'he drew a lottery,' or sold a 'lottery ticket,' as the case may be; but the defendant may, by application to the State's Attorney, obtain a statement more particularly describing the offense intended to be proved under such indictment. Code 1939, art. 27, sec. 652.

Thus, in Wheeler v. State, 42 Md. 563, 567, where the appellant was indicted for violating the statute providing that no person shall keep any gaming table, or any house, vessel or place, for the purpose of gambling, Judge Alvey said: 'The offense is not confined to keeping a gaming table, but the keeping of any house or other place, for the purpose of gambling, is within the letter of the law. And in an indictment under this statute, it is not necessary to set forth the particular kind of gaming allowed, or the particular kind of gaming table kept by the accused; * * * but it is sufficient to charge the offense in the terms of the statute, as has been done in this case.'

Appellant vigorously asserts that the numbers game is entirely different from the policy game. He says that in the numbers game the player chooses a number of three digits, and the winning number is determined by mathematical calculations based on the prices paid at a certain race track; whereas in the policy game the player chooses a number between 1 and 78, and the winning number is determined by drawing from a wheel. However that may be, the essential element of a lottery is the awarding of a prize by chance, and the exact method adopted for the application of chance to the distribution of the prizes is immaterial. This was recognized in Forte v. United States, 65 App. D.C. 355, 83 F.2d 612, 616, 105 A.L.R. 300, where Justice Van Orsdel, after referring to the differences between the numbers game and the policy game, said: 'The fundamental point is that in each case there is the offering of a...