Yellow-Stone Kit v. State

• Decision Date: 31 January 1890
• Citation: 88 Ala. 196,7 So. 338
• Parties: YELLOW-STONE KIT v. STATE.
• Court: Alabama Supreme Court

7 So. 338

88 Ala. 196

YELLOW-STONE KIT v. STATE.

Supreme Court of Alabama

January 31, 1890

Appeal from city court of Mobile; SEEMES, Judge.

Indictment for carrying on a lottery. The indictment in this case charged, in a single count, that the defendant "set up or was concerned in setting up or carrying on, a lottery against the peace," etc. On all the evidence adduced which it is unnecessary to state, the defendant requested the court to instruct the jury that, if they believed the evidence, they must find him not guilty, which charge the court refused, and the defendant duly excepted. Many other charges were asked and refused, and exceptions reserved, but they require no notice. The opinion of this court sufficiently sets forth such other facts as may be necessary to a complete understanding of this decision.

McCarron & Lewis and B. M. Allen, for appellant.

Atty. Gen. Martin and Leslie B. Sheldon, for the State.

SOMERVILLE J.

The defendant was convicted of the offense of carrying on a lottery in this state. The case turns largely on what is to be taken as a proper definition of the word "lottery," within the meaning of the statute, and the constitution of Alabama. Code 1886, §§ 4068, 4069; Const. 1875, art. 4, § 26. The word cannot be regarded as having any technical or legal signification different from the popular one. It is defined by Webster as "a distribution of prizes by lot or chance." This definition is substantially adopted by Bouvier and Rapalje in their law dictionaries. Worcester defines it as "a distribution of prizes and blanks by chance; a game of hazard in which small sums are ventured for the chance of obtaining a larger value." So the American Cyclopedia thus defines a lottery: "A sort of gaming contract, by which, for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he risks." In Buckalew v. State, 62 Ala. 334, it was said, after citing Webster's definition, that "wherever chances are sold, and the distribution of prizes determined by lot, this, it would seem, is a lottery. This, we think, is the popular acceptation of the term." In Bishop on Statutory Crimes, § 952, it is said: "A lottery may be defined to be any scheme whereby one, in paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." In Hull v. Ruggles, 56 N.Y. 424, the New York court of appeals adopts the following as the result of the accepted definitions: "Where a pecuniary consideration is paid, and it is to be determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to receive for it, that is a lottery." This definition is approved in Wilkinson v. Gill, 74 N.Y. 63, as the popular meaning of the word, and one proper to be adopted with a view of remedying the mischief intended to be prevented by the statutes prohibiting lotteries; and it is said: "Every lottery has the characteristics of a wager or bet, although every bet is not a lottery."

It may be safely asserted, as the result of the adjudged cases, that the species of lottery, the carrying on of which is intended to be prohibited as criminal by the various laws of this country, embraces only schemes in which a valuable consideration of some kind is paid, directly or indirectly for the chance to draw a prize. U.S. v. Olney, 1 Deady, 461, 1 Abb. (U. S.) 275; Governors, etc., v. Art Union, 7 N. Y. 228; Ehrgott v. Mayor, 96 N.Y. 264, 48 Amer. Rep. 622; Bell v. State, 5 Sneed, 507; Com. v. Thacher, 97 Mass. 583. There is no law which prohibits the gratuitous distribution of one's property by lot or chance. If the distribution is a pure gift or bounty, and not in name or pretense merely, which is designed to evade the law,-if it be entirely unsupported by any valuable consideration moving from the taker,-there is nothing in this mode of conferring it which is violative of the policy of our statutes condemning lotteries, or gaming. We may go further, and say that there would seem to be nothing contrary to public policy, or per se morally wrong, in the determination of rights by lot. A member of the College of Christian Apostles, as sacred history informs us, was once chosen by lot. And under the law of this state a tie vote on a contested election of any state officer is required to be settled in the same mode. So our statutes authorize a distribution of property owned by joint tenants to be made by lot under the direction of the judge of probate. These are not the evils against which the law is directed. The gratuitous distribution of money or property by lot has never prevailed to such extent as to require police regulation at the hands of the state, nor, so long as human nature remains as it now is and has been for so many thousand years, is it likely ever to be otherwise. The history of lotteries for the past three centuries in England, and for nearly a hundred years in America, shows that they have been schemes for the distribution of money or property by lot in which chances were sold for money, either directly, or through some cunning device. The evil flowing from them has been the cultivation of the gambling spirit,-the hazarding of money with the hope by chance of obtaining a larger sum,-often stimulating an inordinate love of gain, arousing the most violent passions of one's baser nature, sometimes tempting the gambler to risk all he possesses on the turn of a single card or cast of a single die, and "tending, as centuries of human experience now fully attest, to mendicancy and idleness on the one...