State v. Scribner , 2 G. & J. 246 ( 1830 )

Archer, J.

delivered the opinion of the Court.

We conceive that there cannot he a reasonable doubt about the construction of the act, upon which these indictments are framed. They are founded upon the act of 1826, ch. 251, which is as follows: “It shall not be lawful for any person within this State, from and after the passage of this act, to have in possession any ticket, of any lottery, not granted or permitted by this State, with intent to sell, negotiate, or dispose of the same, to sell, negotiate or advertise, in any way whatever, any such ticket, or part of a ticket, or in any way or manner, or as an agent, factor, broker, or attorney, for or on behalf of any other person, or persons, to aid, assist, or in any way to have any concern, with any other person in selling any ticket, in any lottery, not granted or authorised by this State.” The great object of the Legislature was to prohibit the sale of unauthorised tickets, and for that purpose the law prohibits both the possession of such tickets with intent to sell, and the selling of them. To give such an interpretation to the law, as would make the word “ such” refer to the possession of the seller, as part of the description of the ticket, which it should be unlawful to sell, would legalise the selling of tickets by any person, who at the time of sale had not the possession. Such an interpretation would defeat the obvious intent of the law. The phraseology of the law, although its construction (being a criminal law) must be strict, does not demand such an interpretation. By the use of the word “ such,” it was intended to refer to that which had been previously described, — a ticket in a lottery not granted or permitted — that it should be in possession of the seller is no part of the description of the ticket, and the word “ such,” does not refer to the possession, and it is not therefore necessary to charge the fact of possession in an indictment which makes the sale the alleged offence.

But we conceive that the lottery ticket, or part of a ticket, should be set out in the indictment. It must he recollected that the sale of all lottery tickets are not prohibited by law; it is only the sale of such as are not authorised by the State; and it would be proper that the ticket should be set out, that the Court might see whether it was a ticket, the sale of which was authorised, or prohibited. It has been supposed, that there can be no greater reason for setting out the lottery ticket in such cases as these, than there would be to set out a bank note in the case of an indictment for larceny of a bank note; but such cases appeared to stand on peculiar grounds. In all cases of larceny* very particular descriptions of the goods taken, have never been considered necessary ; and the description given in the law which creates the offence, has in general been deemed sufficient. If one be indicted for stealing a handkerchief, it will not be necessary to describe either its dimensions, or its colour; 'or if he be indicted for stealing a piece of cloth, it would not be necessary to give its length, breadth, or colour; and this doctrine is founded in part, probably on the fact, that the prosecutor is not considered as in possession of the article, and is not therefore enabled to give a minute and particular description. But in the case before the Court, the presumption of possession would be the reverse, and there would be no inability, or difficulty, to give a minute description, or to set out the instrument.

But the principal reason upon which this law in relation to indictments for larceny is founded, is because, notwithstanding this general description, it is made certain to the Court, from the face of the indictment, that a crime has been committed, if the facts be true. As in the case put of a larceny of bank notes, it is punishable to steal the note of any bank. The crime therefore appears complete, be it the note of what bank it may — so in the other cases put, a crime appears upon the face of the indictment, if the allegation that a handkerchief, or piece of cloth has been stolen, be true, without any other description, for be its kind what it may, it is equally a felony. But had the statute made it felony to steal the note of a particular bank, it would perhaps, notwithstanding the difficulty in general, of giving a particular description of any stolen article, haye been necessary to have set it out, in order that the Court might • see whether it was a note of such a description, that a larceny of it might be committed.

These principles will be found to be applicable to all offences, created by statute, where it does not contain a complete description of the offence. As in cases where the counterfeiting of certain instruments, is made forgery. The instrument is set out that the Court may see whether it is within the statute. So also where frauds by means of false tokens, and false pretences are punishable, as there are false tokens, and false pretences not punishable, it is demanded that the particular tokens and'pretences be set out, that the Court may see whether the offence is brought within the statute. And the same doctrines [are applicable to indictments, under the statute of 9 Gea. 1 ch. 32, for sending menacing letters. The letters must be set out. Now applying these principles to the cases before the Court, for any thing that appears to the Court upon the face of these indictments, the tickets there referred to may have been authorised by the State. It is true, that there is an averment that they are unauthorised, but this will not be sufficient. The tickets must be spread out, that the Court may perceive whether they be authorised or not; for if this sweeping averment were received, that which is matter of law, would be given to the determination of the jury.

JUDGMENTS AEEIKMED.