Clark v. State

The proof shows that within the territorial jurisdiction of the trial court three policy houses had been in operation, and that appellant as the houseman was in charge of the operations of one of them called the Liberty. The general plan included the service of writers who would issue tickets upon which the ticket purchaser, called the player, would select a number or numbers from 1 to 78, and a triplicate of the ticket would be delivered to him and another would be retained by the writer, while the third with the purchase money would be deposited in a bag with others, and later the bag and its contents would be delivered to the pick-up man, who in turn would deliver them to the house. Twice a day 78 balls numbered from 1 to 78 would be put in a suitable bag by the houseman and shaken, and then there would be drawn from the bag 12 of the balls and the numbers on the twelve would designate the winners. The prizes in money would then be given to the pick-up man, who in turn would carry it to the respective winners. It is not contended, as it could not be, that this is not a lottery, and in one of its lowest forms at that.

There are ten sections in the Code, Title 11, Chapter on Crimes and Misdemeanors, which deal with the subject of lotteries. Under the first section, Section 1038, Code 1930, Section 2270, Code 1942, the offense is made a felony, and under each of the other nine sections, a misdemeanor.

Section 1038, section 2270, reads as follows: "If any person, in order to raise money for himself or another, or for any purpose whatever, shall publicly or privately put up a lottery to be drawn or adventured for, he shall, on conviction, be imprisoned in the penitentiary not exceeding five years."

No case in this state or elsewhere has been found which has passed upon the question as to what is meant by the expression "put up a lottery." We must depend, therefore, entirely on the ordinary and familiar rules of construction which are that we must conclude, unless the contrary sufficiently appears, that the words of a statute have been employed in their usual and most common sense and as they would ordinarily be understood by the public in general. State v. Lee, 196 Miss. 311, 17 So. 2d 277, 151 A.L.R. 1143. What, then, would be understood when we say that John Doe has put up a business, or more specifically that John Doe has put up a mercantile business? We would understand that he has procured a place for it and therein has installed shelves and counters, together with the other necessary equipment, and has stocked it with the merchandise therein to be sold, and has authorized it to be opened for trade. If thereupon he has employed Richard Roe to operate or conduct the business, Roe would not thereby have put up a business but would be operating a business already put up by another.

Or, if we say that John Doe has put up a mill or a gin, Richard Roe by subsequently operating it could not for that reason alone be said to have put it up. Suppose it were a felony in this State to put up a saloon, would a person employed therein to sell the liquors be guilty of the felony of having put up the saloon, instead of the misdemeanors of making sales?

There is a close analogy between the expression here under consideration and the term used in gambling statutes which make it a criminal offense to set up a gaming table. And on this subject, also, few cases are found; but there is one such case, well considered, in Commonwealth v. Burns, 4 J.J. Marsh., Ky., 177, wherein the distinction between setting up a gaming table and the keeping of such a table is pointed out. There it was held that "to set up a gaming table, is to provide whatever may be necessary for the game, and either by acts or words, to propose to play it," and that a person who subsequently kept the game, that is to say, who operated it, would not for that fact alone be the person who set it up.

It has been contended, however, that every new drawing, or every occasion on which a drawing is made, amounts to another and a new putting up of a lottery. Upon the same argument and with equal reason it could be contended that every morning when an established mercantile store is opened for business there would be another and a new putting up of the business. And besides this, Section 1047, Code 1930, Section 2279, Code 1942, deals with cases wherein the putting up is for a single occasion, and that is a misdemeanor.

We conclude, therefore, that to put up a lottery is not to operate it, but is to put up or provide whatever is necessary for its operation, that is to say, to put up or provide (1) the capital, (2) the necessary paraphernalia, and (3) the plan or set-up for the operation.

The indictment against appellant charged that he "did then and there wilfully, unlawfully and feloniously, in order to raise money for himself, publicly put up, own, maintain and operate a lottery to be drawn or adventured for, commonly called policy, a gambling game for money, further description of which is to the grand jurors unknown, and operated same by selling lottery tickets therein . . . and paid out money by chance drawings therein to divers persons to the grand jurors unknown."

It will be observed that the charge is not confined to that of having put up a lottery, which is a felony, but charged further offenses which under subsequent sections of the statutes are misdemeanors. No motion was made to have the state elect upon what particular charge it would proceed but the trial went forward under the indictment as presented. There was no proof that appellant had put up the lottery as that term has been above defined. For all that the proof shows, the lottery may have been in operation somewhere within the same vicinity for sometime before appellant ever had any connection with it whatever. And we think that the suggestion that proof that appellant was operating the lottery casts upon him the burden to show that he did not put it up would be to introduce a novel proposal in criminal law, wherein the burden to prove the charge is always on the state. The defendant here is not availing of an exception or excuse or justification but stands upon the want of proof that he was guilty of the felony.

The proof does show, however, that he did receive money for the lottery and that he did deliver prizes for it, and this is undisputed. This would bring him within Section 1046, Code 1930, Section 2278, Code 1942, and since there was a general verdict of guilty as charged, we sustain the verdict but reverse the judgment as to the penitentiary sentence, and remand so that a fine and jail sentence may be imposed under the section last cited. See Goins v. State, 155 Miss. 662, 124 So. 785, and Grillis v. State, 196, Miss. 576, 17 So. 2d 525.

Affirmed in part, and reversed and remanded for proper sentence.