Wilson v. State , 67 Ga. 658 ( 1881 )

JACKSON, Chief Justice.

The indictment contained two counts, one for selling lottery tickets, and the other for unlawfully keeping and carrying on a lottery and other scheme or device for the hazarding of money and other valuable thing.

The defendant was found guilty of the latter offense and brings the case here, alleging as error the refusal of the circuit court to grant him a new trial.

1. It was not error in the court to instruct the jury in regard to the form of their verdict, if they should find the defendant guilty. It was the duty of the court so to instruct them in this case; because if he were guilty at all it was of the offense of maintaining and keeping a scheme or device for hazarding money, which the court instructed to the effect that he was guilty of, if of any crime at all. There was no proof that he had sold lottery tickets or carried on a lottery, but the proof was all aimed at the point that he did ‘keep and carry on a scheme or device for hazarding money.

The verdict is not liable to the criticism of being a special verdict. It does not find a number of specific facts and leave the crime to be gathered from them; but it finds the defendant guilty of the offense of carrying on a scheme or> device for hazarding money. It simply specifies the crime, and as other kindred offenses were in the bill of indictment (which is not excepted to here), it was necessary that it should be specified.

2. The other ground insisted upon here, is that the court erred in charging as follows :

“It shall not be lawful for any person or persons either by themselves, servants, agents, employes or others to keep, maintain, employ or carry on any lottery in this state, or other scheme or device for the hazarding of any money or valuable thing, (reading from the act of February 24th, 1877.) Well, I charge you that if you believe from the evidence that this defendant kept an office or shop — whatever you may call it — and in that office were placed numbers from 1 to 78, and that any one with his consent selected from those numbers any number or numbers, and paid him, defendant, for them, and if the effect ,of that was to lose the money so paid, or get or draw money afterwards from defendant, and that money lost, if you believe it was lost, defendant retains; if you believe these things proved by the evidence beyond a reasonable doubt, and it to have occurred within this county within two years from the finding of the bill of indictment, you are authorized, to find, that this defendant maintained and carried on a scheme or device for the hazarding of money or ■ other valuable thing. That is all. gentlemen, that there is this case.” •

Elsewhere in the charge, the court put the alternative of the above, and we can see. no error in it.

The very object of the act of 1877, p. 112, copied in the charge, was to make penal .just such a device as this to violate the will of. the state in respect to .suppressing lotteries, and yet to hide the act under such a cloak as the facts here show.

3. There is no expression or intimation of an opinion on the evidence as to what is or is not proved, but all that is left to the jury,- and they .are told that if certain things are proved beyond a reasonable doubt, then they would be authorized — not, must, should or ought — but would be authorized to find the defendant guilty.

The evidence is sufficient to support the verdict; the act of 1877 furnishes the law for it; the subsequent act of 1881, p. 62,does not affect or annul this offense that the act of 1877 made penal, though it may emphasize or make it clearer, and we see no legal reason why the verdict should not stand.

Judgment affirmed.