State v. Matthews , 117 W. Va. 97 ( 1936 )

This is a misdemeanor case in which the defendant, A. T. Matthews, was found guilty and sentenced for operating a "numbers-racket" lottery. He raises only two questions, to-wit, the sufficiency of the indictment and the sufficiency of a search warrant.

(1) The indictment was drawn under Code, 61-10-11, and contained five counts. The defendant was found guilty on all counts. The first count charges that he and one W. B. Wilson in the county of Kanawha "unlawfully did set up and promote and were concerned in managing and drawing a lottery or raffle for money or other thing of value." The defendant contends that a lottery and a raffle are entirely different games and that the count is duplicitous. While recognizing technical differences between the two games, 38 C. J., subject Lotteries, sec. 27, states that a raffle "is generally held to be within the usual definition of a lottery." It is not necessary to weigh closely this contention, however, because the second count relates only to a lottery. That count charges that defendant and Wilson "did knowingly and unlawfully permit such lottery described in the first count of this indictment in premises under their control." Reference to the first count in order to avoid repeating the words "for money or other thing of value," was permissible. State v. Vaughn, 93 W. Va. 419, 117 S.E. 127. As to the second count, defendant contends that the word "lottery" is generic, and fails to inform him "fully and plainly of the character and cause of the accusation" against him as the Constitution, Article III, Section 14, requires. This count with the words read into it from the first count, charges an offense substantially in the words of the statute. This practice is ordinarily held sufficient. Judge Holmes, when on the Supreme Court of Massachusetts said of an indictment charging simply the promotion of a lottery, "The indictment follows the words of the statute and is well enough."Commonwealth v. Sullivan, 146 Mass. 142, 144, 15 N.E. 491. Accord: Salomon v. State, 27 Ala. 26; Freleigh v.State, 8 Mo. 606; Trout v. State, 111 Ind. 499, 12 N.E. 1005; State v. Bove,98 N.J. Law 350, 116 A. 766; Knoll v. U.S., 26 App. D.C. 457; 17 Rawle C. L., subject Lotteries, sec. 22; 38 C. J., supra, sec. 51;State v. Nazel, 109 W. Va. 617, 156 S.E. 45. This rule is said to have been "applied without reserve" to lottery indictments.People v. Taylor, 3 Denio (N.Y.) 91, 93. The defendant relies on State v. Simmons, 99 W. Va. 702, 129 S.E. 757, in which an indictment charging the accused with having devised a scheme todefraud, though following the language of the statute, was not sufficiently informative, because of the incalculable number of schemes to defraud. He asserts there are practically as many different kinds of lotteries as fraudulent schemes. Of this we are not informed. We do know, however, that many schemes to defraud are nebulous and involved, and necessitate detailed descriptions in indictments. On the other hand, the word lottery is commonly understood to mean, "A scheme for the distribution of prizes by chance." Dunn v. People, 40 Ill. 465. Because of that common, well known characteristic of all lotteries — the distribution of prizes by chance — the particulars of the lottery are said to be "only matters of description and not necessary to the accusation." Pickett v.People, 8 Hun. (N.Y.) 83. No lottery of any kind is permissible in this state under Constitution, Article VI, Section 36, and Code, 61-10-11. In jurisdictions where no lotteries are permissible, it is uniformly held to be "mere surplusage to describe in the indictment either the ticket or the lottery."State v. Follet, 6 N.H. 53, 55; France v.State, 6 Baxter (Tenn.) 478, 481; Wharton's Cr. Pro. (10th Ed.), sec. 933; 38 C. J., supra, sec. 58.

The further contention is made that the word "premises" used in the second count is a broader term than the word "house" used in the statute, and that penal statutes must be strictly construed. That contention is without force in this instance, because Code, 61-10-14, requires all laws for suppressing lotteries to be construed as remedial instead of penal. SeeState v. Gaughan, 55 W. Va. 692, 702, 48 S.E. 210. Remedial law is construed more liberally than penal law. A house is included in the definition of the word "premises" and the two words are sometimes treated as synonymous. Since the operation of a lottery is not permissible anywhere in this state, a liberal construction of the two words warrants their treatment here as synonymous.

(2) The particular search warrant questioned by defendant directed search of "that certain place of business located at 144 1/2 Summers Street in the city of Charleston." The proof shows that 144 1/2 is the common number of three apartments on the second floor and three apartments on the third floor of a three story building, and that each of the apartments was occupied separately. The defendant contends that the designation of place to be searched simply as 144 1/2 Summers Street, is not sufficiently specific and that the search and the evidence procured thereunder were invalid. The officer who conducted the search made his return on the warrant described above. He had in his possession while making the search another warrant which directed search of "that certain place of business operated by Shorty Wilson on Summers Street in the City of Charleston." Shorty Wilson is W. B. Wilson, and his place was the particular apartment searched. The officer said "it was over the Idle Hour poolroom and lunch room at 144 1/2"; that he knew where to go and did not think there was a "twelve year old child in the city of Charleston that did not know where Shorty Wilson's place is." Both warrants were attached together when received by and while in possession of the officer. He said that he "did not examine them." Sufficiency of the warrant directing search of Wilson's place is not questioned.

The return of an officer on a search warrant is an incident of, and not a source of, authority. His authority emanates entirely from the warrant. The return is simply a ministerial duty imposed by law on the officer. For failure in that duty, the law penalizes the officer himself, but does not invalidate the search. The law contemplates that the return should be made on the very paper which the officer executes. The use of a different paper for the return need not be discussed now, since that use would affect only the return itself. Here, the officer had in his possession while conducting the search, the two warrants attached together. The two were in effect one, each supplementing the other. The officer's unwitting selection of the warrant containing an indefinite description upon which to make his return, cannot deprive the search of validity under the other warrant. Moore v. Commonwealth, 206 Ky. 779, 790,268 S.W. 563; U.S. v. Clark, 298 F. 533; State v. Noble, 96 W. Va. 432,123 S.E. 237.

The judgment of the circuit court is accordingly affirmed.

Affirmed.