State v. Kennon

• Decision Date: 31 March 1855
• Parties: THE STATE, Appellant, v. KENNON, Respondent.
• Court: Missouri Supreme Court

21 Mo. 262

THE STATE, Appellant,

v.KENNON, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. Under the second section of the act concerning “lotteries,” (R. C. 1845,) an indictment which charges the defendant with selling “tickets in a device in the nature of a lottery, called a raffle,” is sufficient. It is not necessary that the words “lottery ticket” should be used.

Appeal from St. Louis Criminal Court.

The indictment, which was quashed by the court below, is set out in the opinion of Judge Ryland.

H. A. Clover, for the State.

Cline & Jamison, for respondent.

RYLAND, Judge, delivered the opinion of the court.

The question here involves the sufficiency of the indictment. This indictment is as follows:

“State of Missouri, county of St. Louis. St. Louis Criminal Court--January term, 1854. The grand jurors, &c., upon their oath present, that Frederick A. Kennon, late, &c., on, &c., at, &c., unlawfully did sell divers, to-wit, ten tickets in a certain device in the nature of a lottery, called a raffle, to certain persons to the jurors aforesaid unknown, for the price and sum of three dollars for each of said tickets, and which said raffle was then and there created for the purpose of disposing of a farm of land, a piano, and divers other property, the description of which is unknown to the jurors,” &c.

The defendant appeared and moved to quash the indictment, because it contains no offence under the statute; 2d, because the statute makes it penal to sell “lottery tickets” in any lottery or device in the nature of a lottery, and the indictment charges the defendant with “selling tickets” and not “lottery tickets,” and is therefore defective and void. The Criminal Court sustained the motion, quashed the indictment, and the circuit attorney excepted, and brings the case here by appeal.

The indictment is found upon the following section of the statute of 1845, concerning lotteries:

“Sec. 2. Any person who shall sell or expose to sale, or cause to be sold, or expose to sale, or shall keep on hand for the purpose of sale, or shall advertise or cause to be advertised for sale, or shall aid or assist, or be in any wise concerned in the sale or exposure to sale of any lottery ticket or tickets, or any share or part of any lottery ticket in any lottery or device in the nature of a lottery, within this state, &c., being convicted thereof shall pay,” &c.

The indictment charges the sale of “tickets in a certain device in the nature of a lottery, called a raffle.” The defendant's counsel insists that the offence is not properly charged; it consists of the sale of “lottery tickets,” in a device in the nature of a lottery, and not “tickets” in such device, and for this defect, that the motion to quash was well sustained.

The circuit attorney, on the contrary, maintains that the charge is sufficient, and is properly set forth; that...