| Mo. | Nov 19, 1895
We regard the evidence, the substance of which has already been set forth, as sufficient to prove both the venue of the offense and the fact that the defendant made and established, and aided ■ and assisted in making and establishing a lottery in this state.
Under the provisions of 3832, Revised Statutes, 1889, upon which the indictment is drawn, it does not appear to be necessary that the drawing of a lottery, when established, should occur or be intended to occur in this state; it seems to be sufficient if the lottery is made or established “as a business or avocation in this state.” It must be confessed that if a lottery could be established as a business in this state, and then no convictions could follow because no drawings were had in this state, that this would go a long ways toward defeating a very wise and salutary provision of the law. The gist of the offense is plainly the establishing of a lottery as a .business in this state. To prove this, it is not necessary to show that any drawings had occurred, or ever would occur. Their non-occurrence could neither diminish or condone an already completed offense.
Touching the introduction of the lottery tickets, papers, etc., taken from the person of defendant and from his desk, and introduced in evidence against him over his objection, it is insisted that the rights of defendant guaranteed to him by sections 4 and 5 of the amendments to the federal constitution, and sections 11 and 23 of our bill of rights, providing “that no person shall be compelled to testify against himself in a criminal case,” prohibit the seizure of one’s private papers and books in order to obtain evidence against him, and that, consequently, those rights were violated by the seizure and introduction in evidence of the papers aforesaid. But the authorities do not sustain this position.
In Massachusetts the provisions of the fourteenth article of the bill of rights of that state were similar to section 11 of our own constitution, and the objection of the defendant’s counsel was like that made in the case at bar, and it was also urged in the case referred to, as another objection, that the seizure of the lottery tickets and materials for a lottery, for the purpose of using them as evidence against defendant, was virtually compelling him to furnish evidence against himself, in violation of another article in the declaration of rights* But the court, in answering these objections, said:
“In eases of the seizure of stolen goods on search warrants, the goods have almost in all cases been given in evidence against the offender, and no one, I apprehend, ever supposed that a seizure for that purpose was a violation of the declaration of rights; ¡and in this respect there is no distinction between the seizure of stolen goods and the seizure of lottery tickets. '* * * Admitting that the lottery tickets and materials were
In Gindrat’s case, Mr. Justice# Baker when contrasting Boyd v. United States, 116 U.S. 616" court="SCOTUS" date_filed="1886-02-01" href="https://app.midpage.ai/document/boyd-v-united-states-91573?utm_source=webapp" opinion_id="91573">116 U. S. 616, on which defendant relies, with the above cited cases in 14 East, and 2 Metcalf, and the case then being decided, said: “We think that the cases last cited, as well as the present case, are clearly distinguishable from Boyd v. United States. In the latter case, the unconstitutional and erroneous order, process, and procedure of the trial court compelled the claimants to produce evidence against themselves, and such order, process, and procedure were also held to be tantamount to an unreasonable search and seizure, while here, and in the other cases cited, the question of illegality was raised collaterally, and the courts exercised no compulsion whatever to procure evidence from the defendants, and neither made orders nor issued process authorizing, or purporting to authorize, a search of premises or a seiz
In State v. Flynn, supra, Bell, J., speaking as the organ of the court, said: “It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execution of process, whether legal or illegal, or where they intrude upon a man’s privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself ujrnn compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense: The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owners. If a party should have the power to keep out of sight, or out of reach, persons who can give evidence of facts he desires to suppress, and he attempts to do that, but is defeated by force or cunning, the testimony given by such witnesses is not his testimony, nor evidence which he has been compelled to furnish against himself. It is their own. It does not seem to us possible to establish a sound distinction between that case, and the ease of the counterfeit bills, the forger’s implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense his.”
Furthermore, section 11, of our bill of rights, was intended as a restriction on the powers of government, and not designed as a restraint on the unauthorized acts of individuals.
But one point remains for discussion: As before stated, that defendant “did make and establish, and did aid and assist in making and establishing as a business and avocation in the said state of Missouri and city of St. Louis, a lottery, policy, and scheme of clawing in the nature of a lottery,” etc. But it is one thing to make and establish a lottery as a business and avocation, and quite another thing to substantially carry on the business of a lottery, something not charged in the indictment. Consequently the giving of the third instruction, already set forth, was error, for which the judgment should be reversed and the cause remanded.