Salomon v. State

28 Ala. 83 | Ala. | 1856

RIGE, C. J.

In Salomon v. The State, 27 Ala. Rep. 26, this court decided, that the sale, in this State, of a ticket in any lottery, which had been set up in this State, a sister State, or a foreign State, “ without the legislative authority of this State,” for, or on behalf of any agent, conductor, manager, or proprietor of the lottery, was an indictable offence under section 3254 of the Code. The reason of that decision consists in this: that the person making such sale was, by the very act of making it, carrying on, or concerned in carrying on, the lottery.

Of the correctness of that decision we do not entertain a doubt. But it certainly does not sanction the position, that after such sale has been made to a third person, totally disconnected from the lottery, and after he has become the exclusive owner of the ticket, his subsequent sale of it is an indictable offence. In such a case, the true inquiry is, did any agent, conductor, manager, or proprietor of the lottery have any interest or ownership in the ticket at the time of the subsequent sale, or had all such interest or ownership been extinguished by the previous sale. If the previous sale was, in law and in fact, a sale “ out and out ” of the ticket, and extinguished all interest or ownership of every agent, conductor, manager or proprietor of the lottery in the ticket, then the subsequent sale would not be an indictable offence ; otherwise it would be. '

The tickets in. a lottery belong to its managers, proprietors, or conductors, until they are sold or given away. The lottery cannot carry on itself, but is necessarily carried on by its proprietors, conductors, or managers, or by agents appointed by them. The sale of tickets is part of the carrying on. “ It is the duty of courts judicially to know what is the general course of the transactions of human life,” and “ whatever ought to be generally known within the limits of.their jurisdiction.” — 1 Greenlf. Ev., § 6; Duncan v. Littell, 2 Bibb’s Rep. 424. In view of the peculiar nature of lotteries, and of the mode in which they arc generally carried on, we lay down the following propositions: Evidence that a bookseller in this State, through a series of months, kept on hand in his bookstore tickets in a lottery not authorized by the legislature of this State, — that he had at various times sold such tickets in his bookstore; that after lie had thus sold some of such tickets he had been indicted and convicted therefor; that after such conviction he continued to keep on hand in his store tickets of the same lottery, and instructed his clerk to inform persons applying for such tickets that he (the bookseller) could not sell them, and refused, as a general thing, to sell them ; but that, notwithstanding all this, he did sell such tickets to some persons, — certainly tends to prove that he was concerned in carrying on the lottery. And where evidence of that description, and having that tendency, has been adduced by the State, on the trial of an indictment for carrying on or being concerned in carrying on a lottery contrary to the provisions of section 3254 of the Code, if the defendant wishes to defend himself, upon the ground that he had purchased the tickets for selling which he is indicted, and that he had no connection with the lottery, the burthen of proving such purchase is on him ; and if there is no evidence of such ' purchase, a charge asked by him, which assumes that there is evidence of such purchase, or which refers directly to such purchase as a matter of some consequence in the case, is abstract, and may for. that cause be refused, although the legal proposition asserted in it is correct. — See 1 Greenlf. Ev. (5th edition), §§ 36, 74, 79, 83; and the notes to sections 36 and 79.

Applying the views above expressed to the three cases now under consideration, the result is as follows : The judgment of the court below in the case of Salomon v. The State, is reversed and remanded, for the error in the charge of the court below. The judgment in Boullemet v. The State, No. 2985, on the first division, is reversed and remanded, for the refusal of the court below to give the charge asked by the defendant; the judgment in Boullemet v. The State, No. 2984 on said division, is affirmed. In the case last mentioned, no exception was taken to the charge given; and the first charge asked by the defendant was abstract, and therefore properly refused. The other charge asked by him is too involved and confused. Charges to the jury should be direct and certain. Cothran v. Moore, 1 Ala. Rep. 423. There was no error in refusing either of these charges.