Commonwealth v. Howes

32 Mass. 231

Opinion

Shaw C. J.

delivered the opinion of the Court. This is an information founded upon St. 1817, c. 191, § 2, which provides, that all sums of money drawn by any citizen of the commonwealth, in any unauthorized lottery, and received, shall be forfeited and may be recovered to the use of the commonwealth, by indictment in any court of competent jurisdic tian. There are several other statutes on the subject of lotteries, intended to restrain and prohibit unauthorized lotteries, but the one cited is the only one which declares this particular forfeiture, or directs the mode of prosecution by which it shall be recovered.

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It might perhaps admit of doubt, upon a critical construction of the statute, whether or not, the drawing and receiving of prize money in an unauthorized lottery, is intended to be made a crime or offence. The forfeiture seems rather to be a cumulative remedy, superadded to other specific penalties, and intended to take away all motive to the purchase of lottery tickets, by depriving the holders of the fruits of them. To accomplish this, the statute declares, that the money shall be forfeited to the use of the commonwealth, and may be recovered by indictment. The whole act is prohibitory and penal, and the forfeiture thus declared is in the nature of punishment. As to the mode of prosecution, we take the rule to be well settled, that where a new offence is created by statute, or in other words, where an act not before subject to punishment is declared penal, or subject to any specific penalty or forfeiture, and a mode pointed out by which it shall be prosecuted, that mode alone can be pursued. Rex v. Robinson, 2 Burr. 799 ; Rex v. Boyall, 2 Burr. 832. Where an act is already made penal and punishable by indictment, and a further mode of prosecution is given by statute, it is held to be cumulative and does not by implication take away the existing remedy. So, when an act is made an offence by statute, which was not so before, and no remedy or mode of prosecution directed, it may be prosecuted by any common law remedy adapted to the case.

The Court are of opinion, that the case before us falls under the rule first above stated. If the drawing and receiving prize money in an unauthorized lottery, is, by this statute, made an offence, which is doubtful, it is a new offence, not before punishable, a particular forfeiture is declared, and a mode of recovering it, prescribed, and to that, we think, the commonwealth must resort as the only remedy.

Judgment arrested

But see St. 1833, c. 148, § 5, passed after the offence in question wag committed; also Revised Stat. c. 132, § 8.