3 N.Y. Crim. 85 | N.Y. Sup. Ct. | 1885
The defendants were indicted in the court of General Sessions of this city for the offense of contriving a lottery in violation of the provisions of section 325 of the Penal Code. By the section mentioned, a person who contrives, proposes or draws a lottery, or assists in contriving, proposing or drawing the same is punishable by fine or inprisonment or by both.
The defendants sold what seems tó be a compartment box accompanied by 150 pieces of chewing gum, each piece being numbered. The chewing gum, according to the description given of it by the defendants to the purchaser, was to be sold to children for a penny a piece each one of which drew a prize, consisting of an egg small or large according to the number upon the chewing gum. It seems to have been an Easter device. Grimm, one of the appellants, stated to the purchaser that they sold a great many of the packages and that the boys on the street had run after him very hard until he had filled up his box with prizes.
It is to be inferred from this evidence, that the scheme, whatever it may be designated, was popular, and calculated to have an extensive application. The evidence for the people, therefore, presents not only the facts that the scheme or contrivance was sold by the defendants and that they admitted the sales of many of them, but the contrivance itself was exhibited to the jury. It is insisted by the counsel for the appellants, that notwithstanding this evidence, the case for the prosecution rested upon the confession of the defendants on which a conviction under the Code could not be had (see § 395), unless there was additional proof that the offense was committed. The additional proof was furnished in the purchase already mentioned and in the production of the article so purchased. This is deemed to be a sufficient answer to that objection.
The learned counsel for the appellants also insists that this was not a lottery, because no evidence was given showing that any person paid or agreed to pay anything for a chance. And this proposition rests upon the fact that Mr. Comstock, a witness for the people, bought the box and gum, not for the purpose of distribution, but for the purpose of establishing the fact that sales of the article were made by the defendants, and on the supposition that such acts made them amenable to section 325 already mentioned. It is certainly not necessary un
If the defendants had been indicted alone for contriving, it might be doubtful under the evidence whether a conviction could be sustained on the indictment. But it is not only that they contrived, but assisted in contriving a certain lottery, and the proof of that fact was furnished by the defendant Grimm, who admitted that he manufactured and arranged the box with the numbers, and bought the gum from another manufacturing company. That is sufficient to bring him within the charge in the indictment, that he assisted in contriving the scheme which he sold. The object of the statute was to prevent everything in the way of a lottery, raffle or gift enterprise or kindred subject, by whatever name it might be known, whether it was for children or adults or designed for any particular season of the year, and however innocent it might be assumed to be in character and in effect by the contriver.
The charge was clear, comprehensive and decidedly impartial. Ho element favorable to the appellants was omitted —indeed no exception was taken to it—and no request made to add to it or change it in any respect. Ho error has been discovered in the examination of the case therefore, which calls for a reversal of the conviction, and it becomes our duty in the enforcement of the statute upon which the prosecution rested to affirm the judgment. Ordered accordingly.
Davis, P. J., and Daniels, J., concur.