Trout v. State

• Decision Date: 20 September 1887
• Parties: Trout v. State.
• Court: Indiana Supreme Court

111 Ind. 499

12 N.E. 1005

Trout

v.State.

Supreme Court of Indiana.

September 20, 1887.

Appeal from criminal court, Marion county.

J. N. Scott, for appellant. The Attorney General, for the State.

Howk, J.

In this case appellant was prosecuted and convicted, upon affidavit and information, for the unlawful sale of a share in a lottery scheme and gift enterprise. From the judgment of conviction he has appealed to this court, and has here assigned errors which call in question the overruling (1) of his motion to quash the information; (2) of his motion for a new trial; and (3) of his motion in arrest of judgment.

Of these alleged errors, the first and third will be considered together, as they each present the single question of the alleged insufficiency of the facts stated in the affidavit and information herein to constitute a public offense. It was charged, substantially, in the affidavit and information, that, on November 17, 1885, at and in Marion county, appellant unlawfully sold to John W. Page, for the sum of 10 cents, then and there paid by Page to appellant, one share, chance, and opportunity to draw in a certain lottery scheme and gift enterprise for the division of personal property, to-wit: certain sums of lawful money of the United States to be determined by chance and lot, which said sums of money and a particular description thereof were to affiant unknown, and therefore could not be given, and the plan and scheme for the division and distribution of such sums of money, by said lottery scheme and gift enterprise, were to affiant unknown, and could not be given; and the mode of operating and conducting such lottery scheme and gift enterprise, and the name and style and a more particular description thereof, were unknown to affiant, and, for that reason, could not be given; that, as a part of such lottery scheme and gift enterprise, appellant permitted said Page, in consideration of the aforesaid sum of 10 cents so paid to appellant as aforesaid, to select any three numbers from a large number of numbers designated by appellant, and, in the event two of the three numbers so selected by said Page, were drawn, designated, and selected by the managers and operators of such lottery scheme and gift enterprise, said Page would be entitled to a large share of money, to-wit, the sum of 46 cents, of the sum of money to be divided as aforesaid by the managers and operators of such lottery scheme and gift enterprise as aforesaid; and in the event two of such three numbers were not drawn, designated, and selected by said managers and operators, then the said Page would not receive any part or share whatever of said sum of money; that thereupon said Page then and there selected and designated the numbers 3, 19, 67, from said large number of numbers, and then and there paid appellant, for the share and chance aforesaid, the sum of 10 cents as aforesaid; and, according to the plan and scheme of said lottery scheme and gift enterprise, said numbers 3, 19, 67, entitled said Page, the purchaser thereof, to the sum of 46 cents of the sum of money to be so divided as aforesaid, in case two of three of said numbers were drawn, designated, and selected from a large number of numbers by the managers and operators of said lottery scheme and gift enterprise; and in case two of said numbers 3, 19, 67, so purchased as aforesaid, were not drawn, designated, and selected as aforesaid by the managers and operators of such lottery scheme and gift enterprise, then, and in that event, said Page would not be entitled to and would not receive any part or share of the money to be so divided by chance and lot, by the managers and operators of said lottery scheme and gift enterprise as aforesaid.

From the facts stated and recited in the affidavit and information herein, the substance of which we have given, it is manifest that it was intended to charge appellant therein and thereby with the offense against public policy which is defined, and its punishment prescribed, in section 2077, Rev. St. 1881. That section reads as follows: “Whoever sells a lottery ticket or tickets, or share in any lottery scheme or gift enterprise, or acts as agent for any lottery scheme or gift enterprise, or aids or abets any person or persons to engage in the same, or transmits money by mail or express, or...