State v. Becker

• Decision Date: 12 March 1913
• Citation: 248 Mo. 555,154 S.W. 769
• Parties: STATE v. BECKER et al.
• Court: Missouri Supreme Court

154 S.W. 769

248 Mo. 555

STATE v. BECKER et al.

Supreme Court of Missouri, Division No. 2.

March 12, 1913.

1. INDICTMENT AND INFORMATION (§ 125) — DUPLICITY — "LOTTERY" — "SCHEME IN THE NATURE OF A LOTTERY."

An indictment in the language of Rev. St. 1909, § 4770, which charges defendants with making and establishing a "lottery" and a "scheme in the nature of a lottery," is not duplicitous; the term "lottery" including every scheme punishable under the description "scheme in the nature of a lottery."

2. INDICTMENT AND INFORMATION (§ 110) — LANGUAGE OF STATUTE — LOTTERY.

The offense of aiding and assisting in making and establishing a lottery, in violation of Rev. St. 1909, § 4770, is sufficiently charged in the statutory words, though the persons aided and assisted by the defendants are not named.

3. INDICTMENT AND INFORMATION (§ 125) — DUPLICITY.

An indictment for establishing a lottery is not duplicitous because it charges that the lottery is "known as the Old Reliable Company and the Standard Investment Company."

4. INDICTMENT AND INFORMATION (§ 110) — LANGUAGE OF STATUTE — LOTTERY.

An indictment in the language of Rev. St. 1909, § 4770, which charges the making and establishing of a lottery as a business, is sufficient to advise defendants of the nature of the accusation.

5. INDICTMENT AND INFORMATION (§ 65) — REQUISITES.

It is not necessary to plead the evidence by which the indictment is to be supported.

6. INDICTMENT AND INFORMATION (§ 110) — LANGUAGE OF STATUTE — LOTTERY.

An indictment in the language of the statute, which charges the making and establishing of a lottery as a business on a certain date, is not bad because it charges that certain sums of money "were thereafter to be disposed of by lot or chance."

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Frank Becker and others were indicted for establishing a lottery. From a judgment sustaining a demurrer to the indictment, the State appeals. Reversed.

Elliott W. Major, Atty. Gen., and Campbell Cummings, Asst. Atty. Gen., for the State. Chas. F. Krone, of St. Louis, for respondents.

BLAIR, C.

This case is here on the state's appeal from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to an indictment containing three counts, the first of which (omitting formal parts) charged that defendants, on a day stated, "did knowingly, willfully, and feloniously make and establish as a business and avocation, in the city and state aforesaid, a certain lottery and scheme of drawing, in the nature of a lottery, known as the Old Reliable Company and the Standard Investment Company, whereby large sums of money, to wit, ten thousand dollars and divers other sums, were thereafter to be disposed of by lot and chance, the particular method by which said disposition of said sums of money was to be made being to these grand jurors unknown, against," etc. The second count is identical with the first, except it charged defendants "did aid and assist in making and establishing," etc., instead of charging they "did make and establish," etc. The third count is identical with the second, except it omits the charge that money was to be disposed of by lot and chance, and omits the statement as to the grand jurors' lack of knowledge as to the method to be employed.

The grounds of demurrer are that neither count states facts sufficient to constitute an offense; that neither count apprises defendants of the nature and cause of the accusation against them; that all the counts are bad by reason of duplicity and repugnancy; that neither count charges the commission of a crime, but merely an intent to commit a crime in the future; and that all the counts are "uncertain, vague, indefinite, repugnant, and duplicitous, * * * and could not be pleaded in bar of any future prosecution."

The indictment follows closely, almost literally, approved forms (State v. Miller, 190 Mo. loc. cit. 451, 452, 89 S. W. 377), but it is suggested new questions are presented by the demurrer in the instant case; and, further, that in one particular the indictment differs from that heretofore approved.

1. It is argued with much force that duplicity appears from the charge that defendants made and established "a lottery and scheme of drawing in the nature of a lottery." It is contended that the term "lottery" and the phrase "scheme of drawing in the nature of a lottery" relate to things so different that the employment of both in the same count constitutes duplicity. The statute is leveled against any person who shall "make or establish or aid or assist in making or establishing any lottery, gift enterprise, policy or scheme of drawing in the nature of a lottery, as a business or avocation in this state. * * *" It is not denied that the term "lottery" is, as interpreted by the courts of other states, broad enough to include every punishable plan, scheme, or device whereby anything of value is disposed of by lot or chance; and it is not contended there yet has been devised, nor that there could be devised, any scheme in the nature of a lottery that the term "lottery" is not, as thus interpreted, broad enough to cover. It is...