Johnson v. State , 137 Ala. 101 ( 1902 )

DOWDELL, J.

The indictment in this case contained three counts. The first charged, that the defendant “set up or was concerned in setting up or carrying on a lottery;” the second count charged that the defendant “set up or carried on, or was concerned in setting up or carrying on a lottery or device for a lottery, or sold or was interested in selling tickets or shares in a lottery;” and the third count charged that the defendant “set up or carried on, or operated a lottery, to-wit, a slot, machine,” etc.

Before entering upon the trial, the court, on motion of the solicitor, entered a not. pros, as to the second and third counts against the objection of the defendant. This action of the court was permissible, and the objection of the defendant, was wholly without merit.

The case was then tried on the first count resulting in a verdict and judgment of guilty. The controlling question in the case is, whether the machine described in the evidence, with the uses to which it was put, falls within the definition óf a lottery, the. carrying on of which is denounced both by our constitution and statutes. In Loiseau v. The State, 114 Ala. 38, it was said by this court: “Lot has been correctly defined to be, £a contrivance to determine a question by chance, or without the action of man’s choice or will.’ To be a criminal lottery, there must be a consideration, and when small amounts are hazarded to gain large amounts, and the result of winning to be determined by the use of a contrivance of chance, in which neither choice nor skill can exert any effect, it is gambling by lot, or a prohibited lottery.” Under the undisputed facts before us as to the device used, and the manner of its use, every element essential to constitute a prohibited lottery within the above definition, is present. It. is wholly immaterial by what name the device is designated or called, if the essential elements of a lottery be present in the uses to which it is put, it falls finder the prohibition of the law against lotteries. The. case of Reeves v. State, 105 Ala. 120, bears a striking analogy to the case at bar. There is no difference in principle, and on the facts, we think that case is conclusive on the question here.

We do not. think there is any conflict between the act approved February 13, 1897, which may be found in the margin on page 287 of the 'Criminal Code, and section 4808 of the Criminal Code. There is a field of operation for both statutes. A slot machine, denounced by the act of February 13th, may be so used as to be wanting in some of the elements of a lottery, and still fall within, the prohibition of that act. It was no doubt the purpose of the Legislature in the enactment of this statute to prohibit the games of chance therein designated, when the same might, be so carried on, as to fall without the definition of a lottery, and still possess some element of gambling.

Further quoting from Loiseau v. The State, supra, on page 38, it was said: “The Legislature has no authority to authorize the licensing of slot machines to be used as the evidence shows it was used in the present case. We would not- be understood as deciding that a slot machine is necessarily one of lot, within the prohibition of the law; nor do we hold that a, wheel of fortune carries with it the legal import of a lottery. Whether it is so or not depends upon the use io which it is put in the particuhjr case. Whatever may be the name or character of the machine or scheme, if in its use a, consideration is paid, and there is gambling, the hazarding of small amounts to win larger, the result of winning or losing to be determined by chance in. which neither the will nor skill of man can operate to influence the result, it is a determinar tion, by ‘lot’ within the comprehensive word ‘lottery’ used in the constitution of this State,” '

The device here, though called a. slot machine, and the manner of its use as shown by the evidence, falling clearly within the definition of a lottery, the court committed no error in sustaining the objection of the State to the introduction in evidence of the license, since it is not, within the power of the legislature to authorize the licensing of a lottery. Nor do we find that the court committed any error in other rulings on the admission and rejection of evidence.

No' error being shown by the record, the judgment 'of the circuit, court will be affirmed.

McClellan, C. J., dissenting.