Commonwealth v. Sullivan , 146 Mass. 142 ( 1888 )

Holmes, J.

1. This is an indictment under the Pub. Sts. c. 209, § 1, for setting up and promoting a lottery. .The indictment follows the words of the statute, and is well enough.

2. The testimony described a game substantially similar to that described in Commonwealth v. Wright, 137 Mass. 250, which the jury found to be a lottery. The defendant asked the court to rule that there was no sufficient evidence to warrant a conviction. The court refused so to rule, but ruled that, if the evidence was believed, “it was a lottery, and a setting up and promoting a lottery,” and that the jury would be warranted in finding the defendant guilty. If the statement that “ it was a lottery,” &c., was anything more than a preliminary explanation of why the court refused the defendant’s request, the substance of the ruling made being that there was evidence for the jury, we cannot say that it went too far.

The testimony was not very clear, it is true, and further description seems to have been excluded on the defendant’s objection. But if the evidence meant anything, it described a game in which a price was paid for a chance of a prize, and in which it purported to be determined by chance; that is, by means making the result independent of the will of the manager of the game, according to a scheme held out to the public, whether he who paid the money should have the prize or nothing. This having been determined to be a lottery in Commonwealth v. Wright, it is not necessary to go on forever taking the opinion of the jury in each new case that comes up. Whether or not a definitely described game falls within the prohibition of the statute, is a question of law. The defendant was bound to know at his peril. Whatever practical uncertainty courts may have felt upon a subject with which they are less well acquainted than some others of the community, in theory of law there is no uncertainty, and the sooner the question is relieved from doubt the better.

8. The court excluded a question by the defendant on cross-examination, whether one Washington, who, on another occasion, accompanied the witness to the same place, did not charge him with having picked up a paper produced, and with having proposed to Washington to swear that it was bought of the defendant, &c. The exclusion was proper, in the discretion of the court. There was no offer to prove that the witness acquiesced in the charge. The means of Washington’s knowledge were not suggested. The witness might have been asked about the fact with which he was supposed to have been charged, and Washington might have been produced to contradict him if he could do so.

4. It did not appear with certainty that all the transactions of April 1 were not parts of one continuous setting up and promoting a lottery. The tendency of the evidence was the other way. The motion that the government should be required to elect some transaction complete in itself was rightly overruled.

Exceptions overruled.