State v. Wersebe
| Citation | 181 A. 299 |
| Parties | STATE v. WERSEBE. |
| Decision Date | 05 November 1935 |
| Court | United States State Supreme Court of Vermont |
Exceptions from Franklin Municipal Court; P. L. Shangraw, Judge.
J. R. Wersebe was convicted of disposing of money by and aiding in promotion of a lottery, and he brings exceptions.
Exceptions overruled.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
John H. Webster, State's Atty., of Swanton, for the State.
P. C. Warner, of St. Albans, for respondent.
This is a prosecution based upon P. L. 8683, which, so far as material here, provides that: "A person who * * * promotes a lottery for money, * * * or disposes of money * * * by a lottery, and a person aiding * * * in so doing, * * * shall be fined." There were numerous counts in the information, but the respondent was only found guilty upon counts 2, 3, 7, and 8. These contained the usual allegations of time and place and the usual conclusion, and respectively charged as follows:
No. 2. That the respondent "did aid in the promotion of a lottery for money by to wit paying a certain sum of money, to wit, $22.50, for a lottery ticket to one Robert Sullivan."
No. 3. That the respondent "did dispose of money by a lottery, in that, to wit, he did pay a certain sum of money to wit, the sum of $22.50 to one Robert Sullivan on account of a certain lottery ticket held by the said Sullivan."
No. 7. That the respondent "did aid in the promotion of a lottery for money by, to wit, paying a certain sum of money, to wit, the sum of eighty dollars ($80.00) to one John M. Paquette on account of a lottery ticket previously purchased by the said John M. Paquette and then held by him."
No. 8. That the respondent "did dispose of money by a lottery, in that, to wit, he did pay a certain sum of money, to wit, the sum of eighty dollars ($80.00) to one John M. Paquette on account of a certain lottery ticket held by the said Paquette."
Upon the verdict of guilty judgment was entered. As counts 2 and 3 only covered one transaction, but one fine was imposed. The same applies to counts 7 and 8.
Both sides have briefed numerous exceptions taken during the trial, and we have been furnished with the transcript, but, as the bill of exceptions is only a skeleton bill and in no way refers to the transcript, the exceptions so taken are not brought into the record and are not before us. O'Boyle v. Parker-Young Co., 95 Vt. 58, 63, 112 A. 385; Francis v. London Guarantee & Accident Co., 100 Vt. 425, 429, 138 A. 780; In re Estate of Prouty, 105 Vt. 66, 72, 163 A. 566. However, the bill of exceptions does show that after verdict and before judgment the respondent filed a motion in arrest and duly excepted to its denial. Although this motion was not brought into the printed case as it should have been, we treat the exception to its denial as properly before us and have examined the original motion for its contents.
Omitting the grounds of the motion not briefed, the remaining grounds may be summarized as follows: That a lottery has no settled or technical meaning, and that the plan and operation of the scheme so as to show that it was in fact a lottery should have been alleged; that there is no allegation of manner or means, nor that the money was paid out or disposed of by way of a prize as the result of a hazard or chance, nor that the respondent received a consideration. As to counts 2 and 7 the respondent says that the allegation that he aided in the promotion of a lottery by paying a sum of money goes no further than to allege that he purchased a lottery ticket, which is not a crime under the statute.
It is sufficient to charge a statutory offense in the words of the act if every fact necessary to constitute the offense is charged or necessarily implied by following such language. But if from the nature of the offense the words of the statute do not clearly and definitely apprise the respondent of the offense charged against him, greater particularity must be used. State v. Fiske, 66 Vt. 434, 436, 29 A. 633; State v. Corcoran, 73 Vt. 404, 408, 50 A. 1110; State v. Bannister, 79 Vt. 524, 526, 65 A. 586; State v. Perkins, 88 Vt. 121, 124, 92 A. 1; State v. Aaron, 90 Vt. 183, 185, 97 A. 659. A complaint that fails to allege every fact necessary to constitute the offense charged, though that be statutory, is defective. State v. Perkins, supra; State v. Aaron, supra; State v. Caplan, 100 Vt. 140, 150, 135 A. 705. Such complaint must set forth the charge with such particularity as will reasonably indicate the offense of which the respondent is accused, and enable him intelligently to prepare his defense, and successfully to plead the judgment if subsequently prosecuted for the same offense. State v. Villa, 92 Vt. 121, 123, 102 A. 935; State v. Caplan, supra; State v. Waite, 105 Vt. 265, 268, 166 A. 4.
The word "lottery" cannot be regarded as having any technical legal signification different from the popular one, and may be defined as a scheme by which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them. 38 C. J. 286; Webster's New International Dictionary, Second Edition. In construing the statute we must be guided chiefly by the meaning of the term as it is ordinarily used in a popular sense, and by reference to the mischief intended to be redressed. State v. Clarke, 33 N. H. 329, 66 Am. Dec. 723.
Where no lottery is...
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