10 Utah 338 | Utah | 1894
The plaintiff is a corporation engaged in the lottery busi
The evidence of plaintiff proved that it furnished lottery tickets to the defendant, and that the defendant sold them for the plaintiff, and collected $1,682.75 which he refused to pay over to the plaintiff. The only question raised by the appeal is, can the plaintiff recover of the defendant the money collected by him from the sale of the lottery tickets which he received from plaintiff, and sold for it ? The transaction took place in San Francisco. The laws of California were introduced in evidence, and, among other things, provide (Pen. Code, § 321): “Every person who sells, gives, or in any manner whatever furnishes or transfers to or for any other person any ticket, chance, share or interest, or any paper, certificate or instrument purporting or understood to be or to represent any ticket, chance, share or interest in or depending upon the event of any lottery, is guilty of a misdemeanor.” It is not denied that the plaintiff and defendant together set about to deliberately violate this statute, and deliberately intended and contrived together to commit, and did commit, the crime inhibited by it.
The contention on the part of the respondent is that,
The real vice of the contention on the part of the respondent — and, it would appear, the real error committed by the trial court in granting the new trial — was in holding that the defendant was an agent of the plaintiff at all. Both these parties, plaintiff and defendant, were engaged in the commission of crime, each actively participating in it. Under our statute, both are principals in that act. No contract between themselves could change their relations, so far as the law is concerned. Bach was actively aiding and assisting in the commission of a crime, and now, having committed the crime, and procured the fruits of the criminal enterprise, they come into the civil courts, and ask the agency of the law in a division and application of the proceeds of their criminal adventure. The question is, can this be permitted? It is not simply
Two cases are cited by appellant which appear to be directly in point in this case: Lanahan v. Pattison, 1 Flip. 410, Fed. Cas. No. 8,036, and Udall v. Metcalf, 5 N. H. 396. Both these cases appear to be exactly alike. The-one at bar, and the matter in controversy in •each, was money received by a so-called agent for the purchase price of lottery tickets. It was held that the plaintiff, the lottery company, in neither case could recover.- The employment of an agent to sell tickets in a .lottery is void. See Mechem, Ag. § 38. Therefore, the relation never in fact-exists. As we have already stated, both parties are principals. They are both in equal fault; and it would appear to be a monstrous doctrine if participants in crime may invoke the power of the civil courts to determine which of them is entitled to a particular share of the spoils resulting from their criminal adventure. If they may do this in a lottery case, there certainly can be no reason why it may not be done in a •case where one steals, and the other receives and sells the stolen goods, there being an agreement to that effect in advance. If an action were filed for an accounting by the thief against the person with whom he had an-agreement to receive and sell stolen goods, and who in fact so received and sold them, it is hardly possible that any civil court
We fail to see any reason why this case does not belong to exactly the same class. This money no more belongs to-the plaintiff or defendant than if it had been stolen by one or the other of them, or both. They have simply obtained it by means of a criminal enterprise, and the degree of crime in no wise changes the relation of the parties to each other. In Sykes v. Beadon, 11 Ch. Div. 195, Lord Eldon said he would not sit to take an account between two robbers on Haunslow heath. No more will we sit to take an account between two thieves from San Francisco, and that is what we are asked to do here. We are cleárly of the opinion that it is a matter which ought never to have been brought to the attention of any civil court. The -order of the court below granting a new trial is reversed, and the cause remanded to the court below to dismiss the action.