137 Ala. 101 | Ala. | 1902
The indictment in this case contained three counts. The first charged, that the defendant “set up or was concerned in setting up or carrying on a lottery;” the second count charged that the defendant “set up or carried on, or was concerned in setting up or carrying on a lottery or device for a lottery, or sold or was interested in selling tickets or shares in a lottery;” and the third count charged that the defendant “set up or carried on, or operated a lottery, to-wit, a slot, machine,” etc.
Before entering upon the trial, the court, on motion of the solicitor, entered a not. pros, as to the second and third counts against the objection of the defendant. This action of the court was permissible, and the objection of the defendant, was wholly without merit.
We do not. think there is any conflict between the act approved February 13, 1897, which may be found in the margin on page 287 of the 'Criminal Code, and section 4808 of the Criminal Code. There is a field of operation for both statutes. A slot machine, denounced by the act of February 13th, may be so used as to be wanting in some of the elements of a lottery, and still fall within, the prohibition of that act. It was no doubt the purpose of the Legislature in the enactment of this statute to prohibit the games of chance therein designated, when the same might, be so carried on, as to fall without the definition of a lottery, and still possess some element of gambling.
Further quoting from Loiseau v. The State, supra, on page 38, it was said: “The Legislature has no authority to authorize the licensing of slot machines to be used as the evidence shows it was used in the present case.
The device here, though called a. slot machine, and the manner of its use as shown by the evidence, falling clearly within the definition of a lottery, the court committed no error in sustaining the objection of the State to the introduction in evidence of the license, since it is not, within the power of the legislature to authorize the licensing of a lottery. Nor do we find that the court committed any error in other rulings on the admission and rejection of evidence.
No' error being shown by the record, the judgment 'of the circuit, court will be affirmed.