138 Ala. 86 | Ala. | 1902
The present appeal is prosecuted from an order of the judge of the city court of Selma discharging the appellee on a writ of habeas corpus from custody. The petitioner, appellee here, was arrested on affidavit and warrant before a justice of the peace, and by the justice committed to jail. The offense described in the affidavit was that of “being concerned in setting up or carrying on a lottery, or a device of the like kind, or a gift enterprise, or a scheme in the nature of a lottery or gift enterprise.” The evidence is without conflict, and the same will be set ofit by the reporter in the report of the case, and the only question is whether the business engaged in, or carried on, by the defendant, falls within the definition of a lottery, or a gift-enter-, prise, or device of like kind, such as is denounced by section 4808 of the Crim. Code.
In the case of Yellowstone Kit v. State, 88 Ala. 199, it was said by this court, speaking through Somerville, J., after giving definitions of lottery from different lexicographers, as well as from adjudicated cases: “It may be safely asserted as the result of the adjudged cases, that the species of lottery, the carrying on of which, is intended to be prohibited as criminal by the various laws of this country, embraces only schemes in which a
In Loiseau v. State, 114 Ala. 38, it was said by this court, speaking through Coleman, J.: “To be a criminal lottery, there must be a consideration, and when small amounts are hazarded to gain large amounts, and the result of winning to be determined by the use of a contrivance of chance, in which neither choice, nor skill can exert any effect, it is gambling by lot, or a prohibited lottery.” It was also said in this case, that “lot has been correctly defined to be ‘a contrivance to determine a question by chance, or without the action of man’s choice or will.’. ”
From these authorities, as well as from other adjudications, we thinlc it may be safely said there can be no lottery in the absence of the element of chance.
What constitutes a “gift-enterprise” such as is denounced by the statute, so far as we are advised has never been decided ly this court, and counsel say they are unable to cite any such case by this court. The statute does not in terms define it. The thing denounced, “gift enter-prise,” is used in the statute in connection with “lottery” which is likewise denounced and prohibited. The term “gift enterprise,” therefore, must be construed in connection with the cpntext, and the evil sought to be prohibited. The. statute is manifestly directed against the vice of gaming. Without the aid of a statutory definition of a “gift enterprise,” such as the statute intended to prohibit1, we are left to determine its meaning by the context of the statute in which it is employed, and the definitions given by lexicographers, as well as ly decisions of other courts. In Lohman v. State, 81 Ind. 17, the court took judicial notice that the phrase “gift enterprise” as used in the statute of the State — Indiana—against lotteries, meant substantially “a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who had taken shares in the scheme.”
In Bouvier’s Law Die., Rawle’s Revision, Yol. 1, page 884, the following definition is given: “Gift Enterprise. A scheme for the division or distribution of certain articles of property, to be determined by chance, amongst
In Anderson's Law Dic. p. 488, the following definition is given: “A gift enterprise, in common parlance, is a scheme for Hie division or distribution of certain articles of property, to be determined by chance, among those who have taken shares in the scheme.”
Thus it will be seen, that to constitute a “gift enterprise,” such as is denounced by the statute, the element of chance must enter into the scheme. The business or transaction engaged in, or carried on, by the appellee is fully set forth in the bill of exceptions, and wholly fails to disclose any element of chance entering into its conduct. Moreover, the bill of exceptions expressly recites that “no lot or chance was in anywise employed nor was thei’e any distribution of such articles.” The scheme, if such it may be termed, was only a mode of advertising by those merchants who entered into it. The articles of property given away by the company, of which appellee was the manager, was not by lot or chance, nor by way of distribution of prizes among share or ticket holders in any chance scheme. We are quite clear that there was nothing in the transaction offensive to the statute against “lotteries” and “gift enterprises.”
The case of Lansburgh v. Dist. of Columbia. 11 App. Cases Dist. Col. 512, relied on by appellant as an authority in this case, was based on a statute which in terms defined wlmt should constitute a “gift enterprise” within the meaning of the statute. Our statute does not undertake to do this. And as stated above, our statute, is plainly intended to suppress the evil of gaming — and the “gift enterprise” denounced, like the lottery, is such a scheme, device, or contrivance into which the element of chance enters in the determination of results. The Lansburgh case, supra, can hardly be said to be in point since the statute in that case defined the “gift enterprise” prohibited. Besides, the following cases are opposed to the views expressed in that case, viz: Commonwealth v. Sisson, 178 Mass. 578; People
We concur in tbe decision of the judge of the city court, that under the facts no legal cause existed for detaining the defendant, and he was properly discharged from custody.
As to whether the affidavit charged any offense at all, in affirming that such offense “was in the opinion of the complainant committed” etc., we merely call attention to the case of Monroe v. State, 137 Ala. 88. No objection, however, was made to the affidavit, and the conclusion reached by us on the facts, in the case, renders it unnecessary to express any opinion on the question, had an objection been raised.
Affirmed.