State v. Clarke , 33 N.H. 329 ( 1856 )

Perley, C. J.

The provision of the statute on which this indictment is founded is in these terms: “ If any person shall make or put up any lottery, or shall dispose of any estate, real or personal, by lottery,” he shall be fined not exceeding five hundred dollars nor less than fifty dollars. Comp. Stat. 561, secs. 1, 2.

The word “lottery” is not a term'of the law, and to dispose of real or personal estate by lottery, is not an offence which has a recognized and established legal definition. In construing the statute we must be guided chiefly by the meaning of the term as it is ordinarily used in a popular sense, and by reference to the mischief intended to be redressed.

There are, however, some cases in which courts of other jurisdictions have been called on to give a construction to recent laws enacted against lotteries. The annual distribution of paintings by lot among the members of the American Art Union has been held to be a lottery, forbidden by the constitution of New-York. People v. The Art Union, 3 Selden 240; Bennet v. The Art Union, 6 Sanford 614.

In Woodell v. Shotwell, 3 Zabriskie 465, it was held that if a tract of land is divided into lots of unequal value, and these are sold at a uniform price and distributed among the purchasers by lot, it is a lottery. In The People v. The Art Union, 13 Barb. 577, it was decided to be unlawful to hold forth to others that he has articles which will be distributed by lot or chance to any person, who, before the distribution, shall have paid any money for the chance of obtaining such article.

The name given to the process and the form of the machinery used to accomplish the object are not material, provided the substance ox the transaction is a distribution or disposition of property by lot. In the interpretation of remedial statutes like this, “ the office of the judges is to make such a construction as will suppress the mischief and advance the remedy, and to suppress all evasions for the continuance of the mischief.” Magdalen College Case, 11 Co. 71, b.

From these authorities, and from the common signification of the term, we draw the conclusion, that where a pecuniary consideration is paid, and it is determined, by lot or chance, according to some scheme held out to the public what the party who pays the money is to have for it, or whether he is to have any thing, it is a lottery, within the meaning of the statute.

From the evidence reported in this case the jury were well warranted in finding that, according to some scheme upon which the defendants professed to act, there was a coi’respondence between the numbers placed on the books pui’chased and the different articles proposed as gifts or prizes, by which, when the book was purchased, the defendants ascertained what gift or prize the purchaser was entitled to have, according to them scheme. The defendants on the evidence appear to have held out that notion to the public, and the jury were at liberty to find that, so far at least, the business was fairly conducted.

The purchaser did not know, when he bought his book and paid his money, what prize or gift the number on it would entitle him to receive, and it was with him as much a matter of lot and chance as if he had drawn the number from a hat.

He paid more than the book was worth, and the excess must be understood to have been paid for this chance. As to the real nature of the contrivance, it stands as if the excess had been paid for the chance, without any sale of a book to color the transaction.

It is objected that, by the pui-chase of the book, with a number that in some way designated the gift to which the purchaser was entitled, his gift was ascertained at once upon the purchase, and did not depend on any subsequent drawing of lots; and that, therefore, the case does not fall within the meaning of the term “ lottery,” as it is ordinarily used, and is not within the statute. But with the purchaser what prize he might obtain was a mere matter of lot and chance. The scheme involved substantially the same sort of gambling upon chances as in any other hind of lottery. It appealed to the same disposition for engaging in hazards and chances with the hope that luck and good fortune may give a great return for a small outlay, and is we think within the general meaning of the word lottery, and clearly within the mischief against which the statute is aimed. The instructions of the court on this part of the case appear to have been quite correct.

The evidence was competent and abundantly sufficient to show the concurrence of both the defendants in the transaction. They occupied the shop together; the sale of this particular book was not a solitary act; they carried on together a trade in books on the same plan; this sale of the book and number, and the ascertaining of the gift to which the purchaser, according to their scheme, was entitled, were in the course of their ordinary trade and business. They both actually and actively concurred in the matter. One made the sale and took payment; the other received the number, went through the ceremony of applying the zinc, told Flanders what he was entitled to have by way of gift, and delivered him the ring.

The offence charged in the indictment is made a crime by the statute, and, like most other crimes, may be committed by one man separately, or by two or more jointly^

The conviction was right, and there must be

Judgment accordingly on the verdict.