State v. Brown

• Decision Date: 07 June 1952
• Docket Number: No. 38600,38600
• Citation: 173 Kan. 166,244 P.2d 1190
• Parties: STATE v. BROWN.
• Court: Kansas Supreme Court

Page 1190

244 P.2d 1190

173 Kan. 166

STATE v. BROWN.

No. 38600.

Supreme Court of Kansas.

June 7, 1952.

Rehearing Denied June 20, 1952.

Syllabus by the Court.

1. Punchboards are gambling devices and/or schemes designed for the distribution of prizes by chance and hence, under the constitution, statutes and decisions of

this state, are to be regarded as lotteries per se.

2. In reality a punchboard is nothing more or less than a series, a set, or a group of lottery tickets.

3. G.S.1949, 21-1502, contains three distinct clauses or provisions each of which states and defines a different type of offense involved in a lottery operation.

4. Ordinarily criminal statutes are to be strictly construed but the rule of strict construction does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language used in the statute under consideration.

5. In language so clear and unequivocal as to definitely indicate legislative intent to do so the first clause or provision of the section of the statute described in syllabus 3 makes it a public offense for any person to sell lottery tickets or keep lottery tickets for sale.

6. The information in a criminal action, charging the defendant with the sale of lottery tickets in two counts and keeping lottery tickets for sale in a third count, examined and held to charge defendant with the commission of three distinct and separate offenses prohibited under and by virtue of the terms and provisions of the section of the statute described in the third paragraph of this syllabus.

7. The fact lottery tickets are described in an information as contained in a punchboard or punchboards does not change their status as devices prohibited by the provisions of 21-1502, supra.

8. Following State v. Bush, 45 Kan. 138, 25 P. 614, and other decisions cited in the opinion, it is held: (1) That when the commission of an act is made a crime by statute, without any express reference to any intent, then the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act and (2) that in such a case it is not necessary to formally or expressly allege such intent, or any intent, but to simply allege the commission of the act, and the intent will be presumed

John R. Alden, of Hutchinson, argued the cause, and Fred C. Preble, of Hutchinson, and Harold R. Fatzer, Atty. Gen., were with him on the briefs for appellant.

Frank S. Hodge, of Hutchinson, argued the cause, and Roy C. Davis, Eugene A. White, Robert Y. Jones, and H. Newlin Reynolds, all of Hutchinson, were with him on the briefs for appellee.

PARKER, Justice.

This is an appeal from an order sustaining a motion to quash an information in a criminal action.

The prosecution was instituted under the provisions of G.S.1949, 21-1502, providing:

'Any person who shall sell, or offer to sell, or expose or keep for sale, or advertise for sale, in any manner, or be in any wise concerned in the sale, the offer to sell, exposure to sale, or in advertising for sale, any lottery ticket or pretended lottery ticket, or any writing, printing, token, device or thing purporting to be a lottery ticket, or any writing, certificate or thing intended to evidence the right of the holder to a chance to receive any money or valuable thing as the result of any lottery drawing, and any person who shall sell, offer to sell or advertise for sale the chance to receive any money or valuable thing from the operation of any real or pretended lottery, gift enterprise, policy or scheme in the nature of a lottery, and any person who shall have in charge and use any device in determining the chance upon which property or money is to be procured, either in whole or in part, at another's expense, shall be guilty of a felony, and upon conviction shall be punished by imprisonment at hard labor in the penitentiary for a term not less than one year nor more than three years.'

Omitting formal allegations of no importance to the issues, the information, which is in three counts and specifically charges that action on the part of the defendant as set forth in each of such counts constitutes a violation of the quoted statute, reads:

'* * * that on the 27th day of February, A.D., 1951, in said County of Reno and State of Kansas, one Earl H. Brown, then and there being, did then and there unlawfully, feloniously, and willfully sell to John D. Wright, d.b.a. Brown Motor Court, certain lottery tickets described as follows, to-wit:

'1 Lulu type punch board containing therein certain tokens, tickets or slips of paper with certain number written thereon intended to evidence the right of the holder to a chance to receive money, property or some valuable thing as the result of a lottery drawing, commonly called 'Lulu Board', thereafter to be held. * * *

'Second Count

'* * * that on the 27th day of February, A.D. 1951, in said County of Reno and State of Kansas, one Earl H. Brown, then and there being, did then and there unlawfully, feloniously, and willfully sell to C. Winkleman certain lottery tickets described as follows, to-wit:

'Approximately 10 punch boards including therein certain tokens, tickets or slips of paper with certain numbers written thereon intended to evidence the right of the holder to a chance to receive money, property or some valuable thing as a result of a lottery drawing, thereafter to be held. * * *

'Third Count

'* * * that on the 27th day of February, A.D., 1951, in said County of Reno and State of Kansas, one Earl H. Brown, then and there being, did then and there unlawfully, feloniously, and willfully keep for sale certain lottery tickets described as follows, to-wit:

'Approximately 812 punch boards of various and sundry types and sizes, all of which include thereon and therein certain tokens, tickets and slips of paper and certain numbers written thereon intended to evidence the right of the holder to a chance to receive money, property and other valuable things as the result of a lottery drawing, thereafter to be held. * * *'

The defendant moved to quash the information on grounds that none of the counts therein set forth contained allegations of fact sufficient to constitute a public offense under the provisions of G.S.1949, 21-1502. When this motion was sustained by the trial court the state, as the statute permits (G. S. 1949, 62-1703), perfected this appeal.

At the outset, doubtless because it is obvious there can be no lottery tickets without the existence of a lottery, the appellant contends that punchboards such as are described in the information are lotteries per se and therefore prohibited under the Constitution, Art. 15, Sec 3, and statutes of this state, G.S.1949, 21-1501 to 1506, Incl.

Long ago in State ex rel. Kellogg v. Mercantile Association, 45 Kan. 351, 25 P. 984, 11 A.L.R. 430, this court held, that a scheme for the distribution of prizes by chance is a lottery. Later in Davenport v. City of Ottawa, 54 Kan. 711, 39 P. 708, a criminal case, it held the sale of merchandise, even at the usual price, included the purchase price of tickets to a chance adventure advertised by the merchant and that such transactions were in effect sales of merchandise and lottery tickets for an aggregate price. Still later in State ex rel. Beck v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, 109 A.L.R. 698, it held that in this state any gift enterprise, policy or scheme of drawing in the nature of a lottery is prohibited and illegal.

Quite recently in City of Wichita v. Stevens, 167 Kan. 408, 207 P.2d 386, we said:

'* * * A gambling device is any instrument adapted and designed to play any game of chance for money or property. * * *' 167 Kan. at page 413, 207 P.2d at page 390.

And held:

'Punchboards, with or without merchandise or prizes attached to them, have no use except for purposes of gambling and are gambling devices regardless of where they may be kept or located.' (Syl. p2)

Based on the foregoing decisions we have little difficulty in concluding that the punchboards described in the information are gambling devices and/or schemes designed for the distribution of prizes by chance and hence, within the meaning of that term as used in our Constitution and statutes, must be regarded as 'lotteries' per se. This conclusion, it may be added, finds support in, and is upheld by, numerous well reasoned decisions. See State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553, 163 A.L.R. 1265; In re Gray, 23 Ariz. 461, 204 P. 1029; State ex rel. Olsen v. Crown Cigar Store, Mont., 220 P.2d 1029; Brewer v. Woodham, 15 Ala.App. 678, 74 So. 763; Stranger v. State, 107 Tex.Cr.R. 574, 298 S.W. 906; Helen Ardelle, Inc., v....