State v. Kaub
| Decision Date | 13 May 1884 |
| Citation | 15 Mo.App. 433 |
| Parties | THE STATE OF MISSOURI, Respondent, v. EDWARD KAUB, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Criminal Court, VAN WAGONER, J.
Affirmed.
TURNER & MORRIS, for the appellant.
THOS. B. HARVEY, for the respondent.
The indictment in this case has two counts. The first count charges that defendant, at the city of St. Louis, on the 13th of October, 1882, did knowingly, wilfully, and feloniously make and establish, and aid and assist in making and establishing, as a business and avocation in said city, a lottery and scheme of drawing in the nature of a lottery, known as the Louisiana State Lottery. The second count charges that defendant, at the date and place aforesaid, did knowingly, wilfully, and feloniously, advertise and make public, and cause to be advertised and made public, by means of certain notices then and there printed and circulated in said city and state, that a certain lottery and scheme and drawing in the nature of a lottery known as the Louisiana State Lottery would then and thereafter be conducted, held, and drawn monthly within the city of New Orleans, Louisiana, etc.
The jury found defendant guilty as charged in the second count, and assessed his punishment at six months in the workhouse.
There was evidence tending to show that the Louisiana State Lottery is a stock company organized under the laws of Louisiana, owned by the stockholders. The object of the company is that implied by its name. It has monthly and daily drawings in New Orleans and nowhere else. The company employs vendors to sell its tickets on commission. Kaub was employed by the company as one of its vendors, and sold tickets in St. Louis. He kept a bird store in St. Louis, and conducted his lottery business in a room back of the store. The police made a raid upon his place at the date named in the indictment, and found in this back room large hand-bills of the lottery, and smaller hand-bills to the same purpose, and hand-bills of the official drawings. These bills were all of October and November, 1882; also small envelopes to inclose lottery tickets, with the initials of the lottery and Kaub's name and address printed on the back; also, lottery tickets, and smaller advertisements of the lottery in the shape of cards. Some of these were found outside of Kaub's safe; some were taken from his safe, which was opened by Kaub under a threat from the police that, if he did not open it, they would break it open; some tickets, with the envelopes enclosing them, were, at the date of the arrest of Kaub, taken from a dealer who had just bought them of Kaub, and who was arrested with him at his shop when the police made the raid upon his place on the 13th of October, 1882. This dealer was in the habit of buying tickets from Kaub, and calling at his place to get the monthly lists of drawings These lists of prizes drawn were obtained daily in Kaub's back room by people who came there, and who took these papers, as well as the other hand-bills of the lottery which were lying about the room.
Besides the instructions as to the first count, and other instructions which we need not notice, the court gave the following instructions of its own motion:--
“If the jury believe and find from the evidence, that the defendant, at the city of St. Louis, at any time from and after the first of July, 1881, up to and including the 13th of October, 1882, did feloniously advertise or make public, or cause to be advertised or made public, by means of printed notices then and there printed and circulated in said city, that a certain lottery, or scheme, or drawing in the nature of a lottery, known as the Louisiana State Lottery, would then or thereafter be conducted, held, or drawn monthly within the city of New Orleans and State of Louisiana; that by means of said lottery, or scheme, or drawing, money was to be disposed of by lot or chance, they will find defendant guilty of a felony as by the second count of the indictment he stands charged, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years or more than five years, or by imprisonment in the city jail, or in the city work-house, for not less than six or more than twelve months.”
“The court instructs the jury that any scheme whereby one, on paying money or other valuable things to another, becomes entitled to receive from him such a return in value or nothing, as some formula of chance may determine, is by law a lottery.”
Defendant asked the court to give to the jury instructions substantially as follows, all of which were refused, as were also instructions referring to the first count which we do not set out:--
If defendant, before the 13th of October, 1882, and after the 1st of July, 1881, advertised or caused to be advertised, for sale, any lottery ticket, or tickets, in any lottery or device in the nature of a lottery within this State or elsewhere, or at any time between the dates aforesaid, advertised the drawing of any scheme in any lottery or published such scheme, he was guilty of a misdemeanor to be punished by a fine of not less than one nor more than one thousand dollars.
In order to convict defendant of advertising or making public, or causing to be advertised or made public, by means of any newspaper or otherwise, any lottery, they must find from the evidence such advertising was done by defendant in the capacity of a proprietor or owner of such lottery. One who acts simply as an employee, on commission or for a salary, is not within the purview of the law.
The simple possession of circulars and printed matter by defendant is no offence.
A lottery vendor in Missouri is one who sells lottery tickets, or advertises them for sale; and such a vendor is guilty of a misdemeanor.
Proof that defendant has sold, exposed for sale, advertised, or caused to...
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