Commonwealth v. Brockway , 150 Mass. 322 ( 1889 )

ICnowlton, J.

The ownership of the horse disposed of by raffle, and the proprietorship of the house where the raffle occurred, were in dispute at the trial, and were circumstances bearing upon the question whether the defendant was criminally responsible for the raffle. To prove that he was not, he testified, and offered other evidence tending to show, that Mrs. Welch kept the house, and that he was her boarder. The evidence afterwards offered by the government of what Mrs. Welch said in his presence, coupled with his failure to reply, was clearly competent as tending to contradict his testimony.

The offence alleged in this case was merely a misdemeanor, and persons present aiding and abetting in the commission of it were liable as principals. Commonwealth v. Wallace, 108 Mass. 12. It was not necessary to show - that the defendant was the owner of the horse, or the proprietor of the house, and the instructions of the court upon this part of the case were correct.

The defendant asked the court to rule, in effect, that the offence set out in the indictment could not be committed without a delivery of the horse to Beach, the winner, or a claim for the horse by him. We understand the instructions given to have been in reply to this request, and not that offering the horse to be raffled for, and allowing him to be won by the shaking of the dice, in itself constituted the offence, if there was no recognition of a title in the winner created by the raffle. From the evidence that different persons took chances in the raffle, and presumably paid money for their chances, and that there was a book-keeper who kept a record of their names and of the result of the throwing of the dice, and who announced the name of Beach, who was present, as the winner, it is a fair inference that the horse was afterwards treated as the property of Beach, and the jury were warranted in finding that the animal was disposed of by lottery. If the horse was never delivered to Beach, that alone does not show that he was not treated as the property of Beach, nor that Beach did not receive an equivalent for him. The failure of the government to introduce evidence that Beach claimed him, is not inconsistent with the inference that Beach’s title was voluntarily recognized by the former owner, and that the horse was disposed of by lottery. It does not appear that the instructions were erroneous. See Commonwealth v. Wright, 137 Mass. 250; Commonwealth v. Sullivan, 146 Mass. 142.

Exceptions overruled.