Ford v. State

Boyd, J.,

delivered the opinion of the Court.

Thе appellant was indicted in the Criminal Court of Baltimore City for violating the lottery laws of this State. There are five counts in the indictment, to the fourth and fifth of which demurrers were filed which were overruled. The traverser then filed a special plea to the fourth and fifth counts, which was demurred to by the State and the demurrer sustained. The case was then submitted to the Court оn a plea of not guilty and the traverser was found guilty on the fourth and fifth counts, and not guilty on the others. During the progress of the trial he offered certain evidence which was ruled out and an exception was taken to that ruling. Although the rulings of the Court on the several demurrers and on the admissibility of the evidence offered are all before us, the principal questions involved in them are the construction and constitutionality of section 178 of chapter 310 of the Laws of 1894.

The portion of that section with which we are particularly concerned on this appeal is the provision that “ if any person shall have in his possession in this State any book, list, slip or record of the numbers drawn in any lottery, whether in this State or elsewhеre, or any book, list, slip or record of any lottery ticket or anything in the nature thereof, mentioned in this section, or of any money received or to be received from or for the sale of any such lottery ticket, or thing in the nature thereof as aforesaid (he) shall be liable to indictment and upon conviction shall be, in the discretion of the Court, fined any sum not exceeding one thousand dollars, or shall be imprisoned for a period not exceeding one year, or shall be both fined and imprisoned; provided, however, that this section shall not apply to any person who may have possession of any of tlie articles herein mentioned for the purpose of procuring or furnishing evidence of violations of any of the provisions of the laws relating to lotteries.”

An examination of our statutes will show numerous efforts on the part of our Legislatures to prevent the lottery business from being carried on in this State. Most of the provisions in our present Code looking, to that end, were in the Code of i860, and some of the statutes therein codified had been passеd many years before that date. Under that Code it was and still is a violation of law to draw any lottery, to sell lottery tickets, policies, certificates or anything by which the vendor or other person promises or guarantees that any particular number, character, ticket or certificate shall, in any event, or on the happening of any contingency, entitle the purchaser or holder to receive money, property or evidence of debt If any person kept a house, office or other place for the purpose of selling such tickets, policies, certificates, etc., he was subject to a penalty of one thous- and dollars, as was the owner of the house or оffice who permitted it to be used for such purpose. Then section ‍‌‌​‌​​‌​‌​‌‌​​​‌​​​‌‌‌​​​‌​‌‌​​​‌‌​‌​​‌‌‌​​​​‌​‌‍178 of Art. 27 of the Code imposed a like penalty on any person who brought into this State any such lottery tickets, policies, certificates, etc., and other provisions, with heavy penalties attached, are in the Code looking to the suppression of this great evil, but it still existed. The Legislature of 1894 went a step further and added to section 178 the provision above quoted, whereby the mere possession of the articles named therein is made a crime, unless it be for the purpose of procuring or furnishing evidence of violations of any of the provisions of law relating to lotteries.

The language of this section is too plain to admit оf any discussion as to its meaning. When considered in connection with the previous legislation on this subject, it is evident that the Legislature found that the statutes in force were not sufficient to prevent the lottery business in this State, and it was therefore made a crime for any one to have any of the articles named in his possession, unless it be for the gpe purposе provided for by the statute — procuring or furnishing evidence of violations of the law. It will be necessary then for us to determine whether such legislation is a valid exercise of the powers vested in the State. It cannot now be denied that laws and regulations necessary for the protection of the health, morals and safety of society, are strictly within the legitimate exercise of the police powers of the State ; provided, of course, that such regulations be reasonable. Such laws are not prohibited, either by the Federal Constitution or that of this State. The cases of Singer v. State, 72 Md. 464; McAllister v. State, Ibid., 390; Long v. State, 74 Md. 565; Mugler v. Kansas, 123 U. S. 623, and Powell v. Pennsylvania, 127 U. S. 678, will illustrate the application of the doctrine without encumbering this opinion with the citation of the numerous other decisions on the subject.

If it be necessary to refer to any authority to show that the laws for the suppression of lotteries are regarded by the Courts to be in the interest of the morals and welfare of the people, the cases of Ballock v. State, 73 Md. 1, and Stone v. Mississippi, 101 U. S. 814, will suffice to give the views of the Supreme Court of the United States and of this Court on that subject. There probably never was a time in the history of this State when it was more necessary than the present to use all legitimate means to stamp out this and kindred evils which are demoralizing so many who might otherwise be useful and honest citizens. The man that is always looking for greater returns than his investment or efforts justify is generally a useless, if not a dangerous, member of society, and a lottery is said to be “ a game in which small sums are vеntured for the chance of obtaining a larger value.” It is not difficult to see why one given up to that sort of business soon becomes worse than useless to his community. The tendency is to make him idle, and idleness easily begets crime. Families are deprived of the comforts and sometimes necessaries of life, which are due them, because those who should provide them either squander their means in pursuit of such gains, or have had their powers of earning paralyzed br^he pernicious habit of this form of gambling.

In view of the disastrous effect on those dealing with lottery tickets, and upon the community where such business is conducted, there can be no doubt about the right of the Legislature to prohibit any one ‍‌‌​‌​​‌​‌​‌‌​​​‌​​​‌‌‌​​​‌​‌‌​​​‌‌​‌​​‌‌‌​​​​‌​‌‍from having them in his possession, if that be reasonably necessary, for the suppression of the evil. As the statute made it a crime to have them in possession, the purpose for which the traverser had them is wholly immaterial, and inasmuch as the Legislature did not make the crime dependent upon th.e knowledge of the party as to what the articles were, it was unnecessary to allege in the indictment that the traverser had them in his possession knowingly, wilfully or in any other words that would impute knowledge of the fact that they were some of the articles prohibited by the law. The allegations in the indictment were clearly sufficient.

But it is contended that if that be conceded, the effect of the statute was simply to shift the burden to the traverser and he сould still prove that he did not have knowledge of what the articles were, and hence was not guilty of a violation of law, and that if the statute must be so construed as to deprive him of that right, then it is in conflict with the Constitutions of the United States and of this State. This question was intended to be raised by the special plea filed and the offer of testimony stated in the bill of exсeptions. The plea alleges that the defendant “was in possession of policy books and slips, as stated in said indictment, but also says that he is in no way engaged in the policy business and that he was not aware that the papers, books and other articles which were found in his possession were policy or lottery slips; that the said articles were givеn to him to carry to a certain place, and that he was then taking them to that place without knowing what said articles were.” The proffer of evidence, as stated in the bill of exceptions, was “ that said articles were given to him by a man who asked him to deliver them to another man ; and that he did not kn^f what said articles were and had no knowledge that they were policy books ’ or anything connected with said business.”

It would, of course, be no excuse if the' traverser did not know that the law prohibited the possession of these articles. He is on the contrary presumed to know that it did. Would, then, his ignorance of the fact that what he had in his possession were policy books and slips excuse him? It is argued that to hold it would not, might result in the conviction and punishment of innocent people — that some one might find on the street a book or list of lottery tickets and not know what it was, but be convicted simply because he had it in his possession. We are not informed by the record how the books, lists, slips and records named in the indictment are made and what they embrace, but in the supplemental brief the learned counsel for the traverser have undertaken to explain them, and we cannot imagine how any one finding either of them on the street would be induced to take it into his possession unless he knew what it was, for it seems to be merely a collection of figures and letters so arranged as to be utterly unintelligible to any one not learnеd in the business and to an innocent person would certainly not be suggestive of any value. If any one be so unfortunate as to find one, and whilst satisfying his curiosity as to what it is a police officer overtakes him, it will be time enough to determine whether he'had it in his possession within the meaning of the statute. But if aftef a person has undoubtedly gotten into his ‍‌‌​‌​​‌​‌​‌‌​​​‌​​​‌‌‌​​​‌​‌‌​​​‌‌​‌​​‌‌‌​​​​‌​‌‍possession one of the prohibited articles he is to be permitted, notwithstanding the language of the statute, to prove that he found it, or did not know what it was, it will make the statute practically useless, for if he swears that such was the case it will generally be impossible for the State to prove the contrary, and will be a great temptation to perjury, not only to the accused, but tо others who might come to his assistance. If a reputable person satisfies the prosecuting officer that he came into possession of it in an innocent way, it is not likely the prosecution would be continued, or if the Court be informed of such facts it could take it into consideration in imposing the penalty, and could fine him fifteen cents or less, which would rеlieve him of the costs. Courts can and frequently do consider facts in imposing penalties that would not bar a prosecution. If, for example, the Court is satisfied that the accused was ignorant of the statute under which he was arrested, and if prior to the passage of the statute, what is therein prohibited was not unlawful, the Court might take the fact that he was ignorant of it into consideration in passing sentence, but still he could be lawfully convicted. So far as the justice of the case is concerned, it would not be more inequitable to punish one for having in his possession what is prohibited, when he did not know that he had it, than to punish him when he did not know it was prohibited, although he knew he had it. But he is presumed to know the law and is therefore punished for its violation, although only unlawful because the statute says so, and why should he not be presumed to know that he had what the law prohibited from being in his possession ?

In State v. Baltimore and Susquehanna Steam Company, 13 Md. 181, the statute under consideration provided “ that it shall not be lawful for any slave to be transported on any railroad, or on any steamboat, etc., without a permission in writing from the owner of such slave.” The defence was that the company, or its agents, had no knowledge that the negro was on board and had no intention to violate the law, but the Court held that the liability could be enforced without reference to such circumstances. Tuck, J., in delivering the opinion of the Court, said, “If the Legislature deemed it expedient in view of the grievance cоmplained of to hold persons responsible for transporting negroes, whether they were instigated by a criminal intent or not, they had the power to do so. Such acts may produce mischief in individual cases, but the inconvenience and injury would be much more general if in every case of this kind the party charged could defend himself by offering evidence that hе did not know the negro was on board of the boat, and that reasonable diligence had been used to prevent such persons from coming on board. The law would scarcely afford any protection to slave owners.” In Carroll v. State, 63 Md. 551, this Court said, “ as ignorance of the existence of such law will not excuse, so also ignorance of a fact necessary to be known to avoid a violation of law will not excuse.” In that case there are quotations from 3 Greenleaf on Evidence, section 21, that “where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted, without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not еxcuse its violation.” Again, “ such is the case in regard to fiscal and police regulations, for the violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law, in those cases, seems to bind the party to know the facts and to obey the law at his peril.” The Court refers to a note in Greenleaf where the rule “ is said to apply to the sale of any articles, the sale of which is prohibited, and- it has been held to be no excuse that the vendor did not know it was a prohibited article.” Some of the cases cited in that opinion are very applicable to this case.

Laws of this character have been sustained in numerous decisions, some of which were ‍‌‌​‌​​‌​‌​‌‌​​​‌​​​‌‌‌​​​‌​‌‌​​​‌‌​‌​​‌‌‌​​​​‌​‌‍much more likely to work hardship in individual cases than this statute. In ex parte Holcomb, 2 Dill., C. C. Rep. 392, the defendant was held liable for having in his possession miniature photographs of United States Treasury notes. Laws prohibiting persons from having game in their possession during specified periods have generally been upheld, although the decisions have differed as tо whether thé statutes applied to game received from beyond the State prohibiting the possession. Dickhaut v. State, decided by this Court at the present term — ante p. 451; Phelps v. Racey, 60 N. Y. 12; State v. Randolph, 1 Mo. App. 15; Roth v. State, 51 Ohio St. 209; Magner v. People, 97 Ill. 320, and other cases cited in Dickhaut v. State, supra.

Some of the cases construing statutes against cariying concealed weapons, regulating the sale of intoxicating liquors, oleomargarine, milk, etc., might be cited as tending to sustain the position taken by the State in this case, but it is unnecessary, as many оf them can be found in the note to section 21 of 3 Greenleaf on Evidence (15th Edition). It is proper to say, however, that such statutes are dealing with articles that may under certain circumstances and conditions be lawfully used, yet the Supreme Court of the United States and other Courts in numerous cases have held that the articles could be seized and destroyed by the proper authorities оn the principle that the constitutional right of the individual to hold property is subject to those reasonable regulations which are necessary for the common good and general welfare — especially such as affect the health and morals of the people. The policy books and slips found in the possession of the traverser could only be put to one legitimate use in this State — procuring or furnishing evidence of the violations of the lottery law, and it is not contended he had them for this purpose.

But it is contended that the statute deprives the accused of the right of trial by jury and of his constitutional guarantee that he be not deprived of his liberty without due process of law. But the fallacy of the argument is in assuming that it does interfere with those rights. He had the perfect right to prove either that the articles charged in the indictment were not found in his possession, or that those found were not such as the law prohibited him from having. That is the issue made by the statute. It does not deprive him of the presumption of innocence to which he is entitled, but it does make it a crime for him to have in his possession that which is of no lawful use in this State and which injuriously affects the morals and interferes with the welfare of the people. And it is evident that the statute has made the mere possession of the articles a crime because that is the most effectual way to break up the lottery business. The importance of placing the construction we do on the law could not be better illustrated than by what we find in this case and that of Edward McNeal v. State, which were argued together. The pleas and the evidence offered in the two cases are identical. It may be possible, even if ‍‌‌​‌​​‌​‌​‌‌​​​‌​​​‌‌‌​​​‌​‌‌​​​‌‌​‌​​‌‌‌​​​​‌​‌‍npt very probable, that both received the forbidden articles un-' der exactly similar circumstances, but if that be sо, if looks as if those engaged in the business have for the purpose of shielding themselves and avoiding detection in the delivery of them, resorted to this method of doing so. If the police authorities ascertain who the agent for selling the tickets is, he might be detected in delivering them, so he would call some one to his assistance and, according to the contention of the appellant, if the latter does not know what they are, but they are simply “ given to him by a man who asked him to deliver them to another man,” then he cannot be convicted, although he have his pockets full of some of the articles prohibited by law from being in the possession of any one. Such a construction of the law would render its enforсement very difficult, if not impossible. It is safer to give the language of the Legislature its ordinary meaning and construe it to mean what it says. We do not fear that the innocent will thereby suffer, but if there be any such danger it^js^or the Legislature and not for the judicial branch of the government to correct any defects that may be found, from experience, to exist in the statute, and we find no such objection to it as would give the Court the right to declare it invalid. The judgment must be affirmed.

(Decided April 1st, 1897).

Judgment affirmed with costs.

Case Details

Case Name: Ford v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 1, 1897

Citation: 37 A. 172

Court Abbreviation: Md.