People v. Cadle

New York County Courts

People v. Cadle

10 Misc. 2d 851, 173 N.Y.S.2d 639, 1958 N.Y. Misc. LEXIS 3533

DecidedApril 10, 1958

StatusPublished

This text of 10 Misc. 2d 851 (People v. Cadle) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cadle, 10 Misc. 2d 851, 173 N.Y.S.2d 639, 1958 N.Y. Misc. LEXIS 3533 (N.Y. Super. Ct. 1958).

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Opinion

George D. Ogden, J.

By an indictment containing two counts the Grand Jury of the County of Monroe accused the defendant of contriving, drawing and assisting in a lottery, a felony, and in offering property for disposal dependent upon the drawing of any lottery, a misdemeanor. Both the felony and the misdemeanor are alleged in the indictment to have occurred March 11, 1958, in the city of Rochester, Monroe County, New York.

Defendant’s demurrer is directed to both counts. Nowhere in the indictment is it alleged that those participants who signed for the receipt of folding chairs, for which receipt each paid the sum of $1 and was immediately issued such chair, were to use the same in connection with any lottery or other scheme contrived by the defendant; in other words, nowhere in the indictment is it alleged that the defendant demanded or received any sum of money or other consideration for participation in the game which followed.

The indictment is fatal in this respect, for the second count fails if the first count is insufficient. As was said in People v. Burns (304 N. Y. 380, 382): ‘ ‘ requisite [allegation] is lacking that participants in the game upon which the indictment is based were ‘ persons who have paid * * * consideration for the chance ’ so as to constitute a lottery within the meaning of section 1370 of the Penal Law (People v. Shafer, 273 N. Y. 475).”

The demurrer is allowed (Code Grim. Pro., § 326).

Submit order.

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George D. Ogden, J.

By an indictment containing two counts the Grand Jury of the County of Monroe accused the defendant of contriving, drawing and assisting in a lottery, a felony, and in offering property for disposal dependent upon the drawing of any lottery, a misdemeanor. Both the felony and the misdemeanor are alleged in the indictment to have occurred March 11, 1958, in the city of Rochester, Monroe County, New York.

Defendant’s demurrer is directed to both counts. Nowhere in the indictment is it alleged that those participants who signed for the receipt of folding chairs, for which receipt each paid the sum of $1 and was immediately issued such chair, were to use the same in connection with any lottery or other scheme contrived by the defendant; in other words, nowhere in the indictment is it alleged that the defendant demanded or received any sum of money or other consideration for participation in the game which followed.

The indictment is fatal in this respect, for the second count fails if the first count is insufficient. As was said in People v. Burns (304 N. Y. 380, 382): ‘ ‘ requisite [allegation] is lacking that participants in the game upon which the indictment is based were ‘ persons who have paid * * * consideration for the chance ’ so as to constitute a lottery within the meaning of section 1370 of the Penal Law (People v. Shafer, 273 N. Y. 475).”

The demurrer is allowed (Code Grim. Pro., § 326).

Submit order.

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Bluebook (online)

10 Misc. 2d 851, 173 N.Y.S.2d 639, 1958 N.Y. Misc. LEXIS 3533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cadle-nycountyct-1958.

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