Buckalew v. State

62 Ala. 334

• Court: Supreme Court of Alabama
• Decided: December 15, 1878
• Status: Published

Opinion

STONE, J.

Lottery is a distribution of prizes by lot or chance. — Webster’s Dictionary; Bouvier’s Law Dictionary. There are said to be two kinds of lottery in general use. One, the Genoise, or numerical system; sometimes called the combination plan. The other, the Dutch, or class lottery ; sometimes called the single number plan. — American Cyclopsedia. In each, chances are purchased, generally by the purchase of tickets, or fractions of a ticket. Not necessary, however, that tickets should be issued. Wherever chances are sold, and the distribution of prizes determined by lot, this, it would seem, is a lottery. This, we think, is. the popular acceptation of the term. We judicially know what constitutes a lottery. — Solomon v. The State, 28 Ala. 83. According to the testimony in the present record, it cannot, with any propriety, be said that chances were sold, or prizes won or drawn. In fact, nothing was sold. The entire theory of the game was, that several, or many persons contributed equal sums to a common purse, which was awarded to the contributor whom chance so favored, as to register for him the highest number. In its result, it resembles what is known in horse-race parlance as sweepstakes; or, a raffle, determined by the fall of dice. We do not think the proof established a case of lottery, or sustained the indictment. Code of 1876, § 4445. Whether the defendant violated section 4208, Code of 1876, it would not be proper now to inquire.

We cannot perceive that the present case falls within any of the sections of our liberal system of amendments. — Code of 1876, sections 4815, 4816, 4817, 4818, 4819. It falls more nearly within the last-named of the sections ; but the indictment did not charge that the defendant kept or exhibited, or was interested or concerned in keeping or exhibiting a table for gaming, within section 4208; and there is nothing which allows us to infer that was the offense intended to be charged in the present indictment. The record shows an intention to indict for another offense. An indictment for exhibiting a gaming table would not be a continuation of a prosecution for exhibiting a lottery, and hence a new indictment for the former offense could derive no support from the mistaken prosecution for the latter offense. The indictment in the present record was found at the spring term, 1878, and thus proves the act complained of was done more than twelve months ago. — Code of 1876, § 4646. The offense is barred, and no good can come of remanding the cause.

Eeversed, but not remanded. Let the defendant be discharged.