State v. Bryant

• Decision Date: 31 January 1876
• Citation: 74 N.C. 207
• Court: North Carolina Supreme Court
• Parties: STATE v. J. B. BRYANT.

74 N.C. 207

STATE

v.J. B. BRYANT.

Supreme Court of North Carolina.

January Term, 1876.

Upon the trial of an indictment under chap. 32, sec. 72, Battle's Revisal, (betting on a game of chance,) the jury returned a special verdict, finding: At the time specified in the indictment, there was kept a place on Wilmington street, in Raleigh, where there were sold, small oval shaped cards, with certain numbers on them; that there were also in a box a certain number of envelopes, containing each one card with a number on it. The party bought one of the cards, and was permitted to draw from the box an envelope; if the number on the card corresponded with any one of the numbers on the oval card, the purchaser got ten times the amount invested. The envelopes and the oval cards were kept on a table at which the proprietor stood. The defendant bought and drew a card at the time specified in the bill of indictment. It was called a gift enterprise, and so licensed. Held: That the enterprise was a lottery, and the parties who sold the tickets were not indictable under said section, and the purchaser thereof was not indictable at all, for the reason that the statute did not make it an indictable offence to purchase lottery tickets.

INDICTMENT, tried before Watts, J., and a jury at January Term, 1875, of the Superior Court of WAKE county.

The defendant was indicted under chap. 32, sec. 72, Battle's Revisal, for playing at a game of chance. The jury rendered the following special verdict:

At the time specified in the indictment, there was kept a place, on Wilmington street, in Raleigh, where there were sold small oval shaped cards with certain numbers on them; that there were also in a box a certain number of envelopes, containing each one card with a number on it. The party bought one of the cards and was permitted to draw from the box an envelope; if the number on the card corresponded to any one of the numbers on the oval card, the purchaser got ten times the amount invested. The envelopes and the oval cards were kept on a table at which the proprietor stood.

2. The defendant bought and drew at the time specified in the bill of indictment.

3. It was called a gift enterprise and so licensed.

4. If, upon this state of facts, the court be of the opinion that the defendant is guilty, the jury so find, otherwise they say for their verdict that he is not guilty.

It was adjudged by the court that the defendant was not guilty, and thereupon the State appealed.

Busbee & Busbee, for the defendant , argued:

Defendant is indicted in two counts, (amounting practically to one--the only variation being between a charge of playing and betting money,) for a violation of Battle's Revisal, chap. 32, sec. 72, for betting money or playing at a gaming table.

The defendant is not indicted for a violation of section 69.

The proceeding described is clearly a lottery. Bishop on Stat. Crimes, secs. 952, 953, 954, 955, 956. Bell v. the State, 5 Sneed (Tenn.) 507, 509.

It is not now indictable to construct a place at which games of chance are played, &c., as it was in 1848, as in ??tate v. Gu??to??,8 Ired., 273. Rev. Stat., chap. 34, sec. 68, is not now in force.

It is only indictable “to erect,” &c., and to play, &c., at a gaming table (other than a faro bank,) by whatever name called, at which games of chance shall be played.

By admitted law of construction, “a gaming table, other than a faro bank,” means a table of like kind. It is not intended that a buyer of a lottery ticket should be indicted, because there was a table in the room in which the tickets were sold, upon which they were placed. Rev. Stat., chap. 34, sec. 68; Rev. Code, chap. 34, sec. 72; Bat. Rev., chap. 32, sec. 72.

As to what gaming tables were meant, see Bish. on Stat. Crimes, sec. 866; Ritte v. Commonwealth, 18, B. Monroe (Ky.) 35, 39, 40.

In a game there must be a winner and a loser, but in a lottery as the prizes are to be distributed in any event, the manager does not win, because the ticket purchaser...