State v. Pooler. State

• Decision Date: 21 July 1945
• Citation: 43 A.2d 353
• Parties: STATE v. POOLER. STATE v. CARON. STATE v. LABBE.
• Court: Maine Supreme Court

43 A.2d 353

STATE

v.POOLER.

STATE

v.CARON.

STATE

v.LABBE.

Supreme Judicial Court of Maine.

July 21, 1945.

Exceptions from Superior Court, Kennebec County.

One Pooler, alias one Poulin, Paul Caron, and Ralph Labbe were convicted of conspiracy to engage in maintaining and operating lotteries and they bring exceptions.

Exceptions sustained in part and overruled in part, and indictments adjudged in part sufficient and in part insufficient.

William H. Niehoff, Co. Atty., of Waterville, and Henry Heselton, Co. Atty., of Gardiner, for the State.

F. Harold Dubord, of Waterville, for respondents Pooler and Caron.

Benjamin and David V. Berman, both of Lewiston, for respondent Ralph Labbe.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

MANSER, Justice.

There are three respondents who were indicted jointly with other persons for conspiracy to engage in maintaining and operating lotteries. Thirteen cases were argued together as they present essentially the same issues of law.

The respondent, Pooler alias Poulin, was indicted in seven cases with another person in each case, but not with either of the two other respondents whose cases are before the Court. The indictments in these cases related to lotteries designated as ‘Old Reliable’.

The respondent, Caron, was indicted in six cases with one other person in each case. In four of these the other persons are not before the Court.

The respondent, Labbe, was indicted in two cases and was a joint respondent with Caron. Indictment in the six cases relating to Caron and Labbe concern a lottery designated as ‘Pay Check’.

The seven cases which involve Pooler, alias Poulin, appear in one record. In three of the cases, sentences were imposed aggregating $500 in fines and three months' imprisonment. The other four cases were placed on file.

The cases involving Caron and other persons, and Caron and Labbe, appear in one record. In three of them, sentences were imposed against Caron, aggregating $350 in fines and two months' imprisonment. In the two cases which involve Labbe, a fine of $250 was imposed in one and a sentence of two months' imprisonment in the other.

Each respondent, after entering a plea of ‘Not guilty’ in the cases against him, filed general demurrers to the indictments, and comes forward upon exceptions to the action of the presiding Justice in overruling the same. The issue is the sufficiency of the indictments.

The statute relation to conspiracies as it existed at the time of the indictments is now found in R.S.1944, c. 117, § 25, and reads as follows:

‘If two or more persons conspire and agree together, with the fraudulent or malicious intent wrongful and wickedly to injure the person, character, business, or property of another; or for one or more of them to sell intoxicating liquor in this state in violation of law to one or more of the others; or to do any illegal act injurious to the public trade, health, morals, police, or administration of public justice; or to commit a crime punishable by imprisonment in the state prison, they are guilty of a conspiracy, and every such offender, and every person convicted of conspiracy at common law, shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 10 years.’

The indictments were drawn under this statute. In most of them the charging portion, after giving the date, reads:

‘at Waterville in said County of Kennebec, feloniously did combine, conspire and agree together, with fraudulent intent, wrongfully and wickedly to do a certain illegal act injurious to the public morals to wit, did then and there conspire and agree together with such intent wrongfully and wickedly to engage in maintaining and operating a lottery and to receive, sell and offer for sale lottery tickets, the same being a scheme and device of chance known as ‘Old Reliable’, (or ‘Pay Check’) a more particular description of which is to your Grand Jurors unknown, in violation of the laws of the State of Maine.'

The statute prohibiting lotteries and providing punishment for participation therein, as it existed at the time of the indictments, is now found in R.S.1944, c. 126, § 18, and so much thereof as is pertinent reads as follows:

‘Every lottery, policy, policy lottery, policy shop, scheme, or device of chance, of whatever name or description, * * * is prohibited; and whoever is concerned therein, directly or indirectly, by making, writing, printing, advertising, purchasing, receiving, selling, offering for sale, giving away, disposing of, or having in possession with intent to sell or dispose of, any ticket, certificate, share or interest therein, slip, bill, token, or other device purporting or designed to guarantee or assure to any person or to entitle any person to a chance of drawing or obtaining any prize or thing of value to be drawn in any lottery, policy, policy lottery, policy shop, scheme, or device of chance of whatever name or description; * * * or who in any manner aids therein, or is connected therewith, shall be punished by a fine of not less than $10, nor more than $1,000, to be recovered by complaint or indictment to the use of the county, and he may further be punished by imprisonment for 30 days on the 1st conviction; 60 days on the 2nd conviction, and 90 days on the 3rd conviction.’

The contentions of the respondents may be summarized as follows: ‘The indictments are insufficient because

(1) Under the statute a lottery cannot be regarded as an act injurious to public morals;

(2) The indictments cannot be upheld as common law conspiracies because of insufficiency as to acts alleged;

(3) The indictments are defective because the Legislature did not intend to make a felony out of a conspiracy to commit a misdemeanor; and further, the conspiracy statute relates to crimes punishable by imprisonment in the state prison and, therefore, has no application to misdemeanors;

(4) Conspiracies to operate lotteries are in and of themselves violations of the lottery statute under the language thereof and accordingly cannot be punishable under the conspiracy statute;

(5) All the indictments except one are defective for failure to set forth that the acts which were to be the purposes of the conspiracies were to take place in the State of Maine.

With reference to the contention that a lottery cannot be regarded as injurious to public morals, comment is hardly necessary.

Though lotteries in years past were at times and for special purposes permitted or regulated by law, there is now practical unanimity of legislative and judicial thought as expressed in statutes and decisions, that lotteries are public nuisances, subversive of morals, and contrary to the interests of society and of the state and nation. This is but the expression of the public conscience as formulated into law.

As summed up in 34 Am.Jur., Lotteries, § 19: ‘experience demonstrated the evil tendency and effect of such schemes and the need for public control and regulation.’

‘It is generally recognized that laws for the suppression of lotteries are in the interest of the morals and welfare of the people of the state, and are therefore a legitimate exercise of its police powers.’

Scathing is the denunciation of the United States Supreme Court, writtein in 1849, in Phalen v. Commonwealth of Virginia, 8 How. 163, 49 U.S. 163, 168, 12 L.Ed. 1030, as follows:

‘The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infects the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.’

This comment was quoted with approval in 1897 in Douglas v. Commonwealth of Kentucky, 168 U.S. 488, 18 S.Ct. 199, 42 L.Ed. 553. It is as apt to present conditions as it was on the former occasions.

As to the second contention, it appears to be predicated upon a hoped-for finding sustaining the first claim that a conspiracy to engage in maintaining and operating lotteries is not against public morals, and that the indictments must therefore be sustained, if at all, as alleging a conspiracy at common law. Having found against the respondents on the first issue, it is unnecessary to consider or discuss the second, except to say that it is without merit in any event.

Regarding the third contention, it is claimed that by means of the conspiracy statute the state seeks to convert a misdemeanor under the lottery statute, into a felony. It is also urged that the conspiracy statute contains a provision to the effect that a combination ‘to commit a crime punishable by imprisonment in the state prison’ is a conspiracy, and hence the statute was intended to have application only to such substantive offenses as were felonies. Examination of the conspiracy statute clearly negatives any such intention. The clause cited is but one of several offenses specifically denominated. True it is, that a wide discretion is given to the court as to punishment, and undoubtedly because of the wide range of criminal turpitude which may be experienced in the various sorts of conspiracies. So, in the present case, we find the aggregate sentences against Pooler to be $500 in fines and three months' imprisonment; against Caron $350 in fines and two months' imprisonment; and against Labbe $250 in fines and two months' imprisonment. The statute says ‘shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 10 years.’ In the cases here considered, the trial court imposed sentences applicable to the grade of misdemeanors. The court is properly given the power to make the punishment fit the crime.

Legislatures and courts have long recognized that a confederacy or...