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9. Wharves. $ 2422. Where a wharf is extended below low water mark, and into the channel of the tide-waters of the commonwealth, it does not necessarily follow that it is a common nuisance, but this is the presumption, and the defendant must show that it is no impediment to navigation, or detriment to the public. n If the effect of such a wharf is to fill up the channel, or divert the current, it is a nuisance. O
10. Docks. § 2423. Public docks are to be protected by the same powers, and it has been held a nuisance to monopolize such a dock by forcing into it a larger vessel than those for which it is constructed. р
11. Oyster Beds. § 2424. Planting oysters in public waters is not such a special appropriation of such waters as will justify their removal as a nuisance, unless they interfere with the rights of the public; and in this latter case, a private person has no right to take them away and convert them to his own use. q
12. License or Charter from Government. § 2425. The supreme authority of the state may, as has been seen, authorize an obstruction of the highways of the state ; but this license or charter must be strictly construed, and any negligence or excess in the exercise of the conveyed powers will expose the parties, if a nuisance result, to an indictment.r
13. Neglect in Repairing Roads. § 2426. Neglect, as well as positive commission, may become the basis of an indictment for nuisance. Thus, a person or corporation who undertakes the cleansing or repairing of a road or channel, excluding others from such office, is indictable for a nuisance created by the neglect. 8
n R. v. Grosvenor, 2 Stark. 511; s Ante, 2375; State v. King, 3 Com. v. Wright, Thacher's C. C. 211. Iredell, 411; State v. Commissioner, 1
Walker, 368; People v. Corporation p R. v. Leech, 6 Mod. 145.
of Albany, 11 Wend. 539. For ina State v. Taylor, 3 Dutcher, 117. dictment, see post, $ 2427, 2518. See ante, $ 2376.
$ 2427. Indictment. The indictment, when the basis of the charge is neglect, must set forth the nature and exclusiveness of the duty imposed on the defendant; for this is matter of substance.t But it has been said not to be necessary to aver that the defendants had the means to repair. u In such indictments. two defendants, having duties distinct, both in source and limit, cannot be joined; v nor can offences having distinct characters and penalties be coupled in one count. w The termini of the road must be correctly laid, x and the road must be averred to be public. y Whether a date is to be averred, has been already discussed. z
$ 2428. Judgment. Abatement. — The law of abatement has been already discussed ; a and it has been seen that a nuisance may be abated by private individuals when this can be done without injury to vested rights. Where, however, any question of title is concerned, it is much safer to leave the question of abatement to the judgment of the court after conviction. When the indictment is for neglect in not repairing a road, the usual practice is to impose a fine, to be remitted (if there be no contempt or wilful violation of the law) on the road being repaired. c
i State v. King, 3 Ired. 411; State (S. C.) 310; though see contra, State v. Commissioners, 1 Walker, 368. See v. Harsh, 6 Blackf. 346. ante, § 2375 ; post, $ 2518; Wharton's y Parkinson v. State, 2 W. Va. 389. Prec. 781, note.
z Ante, $ 233. u State v. Harsh, 6 Black. 346. a Ante, $ 2376 a. v 2 Hawk. c. 25, § 89.
6 See Taggart v. Com. 9 Harris w Greenlow v. State, 4 Humph. 25. (Penn.), 527.
* State v. Northumberland, 46 N. c See R. v. Incledon, 13 East, 164. H. 156; State v. Graham, 15 Rich.
§ 2428 a. The term lottery has a double meaning. It includes not only a scheme for the distribution of prizes by chance, but the distribution itself. a At common law neither of these is indictable. By statute, however, not merely lottery schemes themselves, but sales of lottery tickets, are made indictable in many jurisdictions. The statutes in question being too numerous and too various for analysis, we must content ourselves with some general notices of the adjudications to which they have given rise.
I. OFFENCES INCLUDED BY STATUTES. § 2429. Supposing the term “ lottery" as a nomen generalissimum is introduced in a statute, what is included in the term ? In the United States there is a popular usage attaching the term to schemes for the distribution of prizes by chance among persons purchasing tickets; the drawing purporting to be from a wheel, on a particular day, which day, with the amount of the intended prizes, is previously announced. But this is but a single form of lottery; the term, in its full sense, embracing all schemes for the distribution of prizes by chance, and including faro tables, and various forms of gambling. At the same time there is a wide distinction between a private and a public offering of prizes by chance. A., B., C., and D. may meet together, and in good faith agree
that a certain article to which they have a common claim shall be given to one who draws a particular number. This is a matter of contract which, if the terms are known to the parties beforehand, has nothing in it repugnant to sound morals, and nothing which can operate on the community as a fraud. When, however, the community at large is invited to come in, a new and very serious objection springs up. Indea See U. S. v. Olney, 1 Abb. U. S. 275; Dunn v. People, 40 III. 465.
pendently of the opportunity for fraud given to the managers of such enterprises, their publication imparts an excited spirit of gambling to the public generally. On the one side often ensue gross cases of deception as to the scheme itself; on the other the sacrifice of savings by the ignorant and credulous, and excitement, destructive of regular industry, often inducing insanity. It is to suppress this species of lottery, we should remember, that the lottery statutes are aimed. The test, therefore, as to any scheme for the distribution of property by chance is, is it private or public. If a private arrangement be made, by which A., B., C., and D. agree upon the lot as the mode of settling the title to a particular piece of property, this is not a lottery in the penal sense. If they 'adopt a plan by which all who choose may buy tickets in a prearranged scheme, this is a lottery in the penal sense. C Hence a “gift enterprise," or a “raffle," by which the public is invited to take shares in a scheme for the distribution of prizes by chance, is a lottery, no matter how artfully the object may be disguised. d Nor does it affect the question that in the scheme there are no blanks. e Such, for instance, has been ruled to be the case with a gift sale of books, by which the books were offered for sale at prices above their real value, and by which each purchaser was declared to be entitled in addition to a prize, to be ascertained, after the purchase, by a correspondence, unknown to the purchaser, between certain numbers indorsed in the books offered for sale, and the different prizes proposed.f The same ruling took place as to the American Art Union ;f1 and to a sale of envelopes, some of which are alleged to contain tickets enabling the holder to purchase valuable property at a nominal price.g But we cannot extend this principle to cases where, by private and limited contract, certain parties unite according to a plan known to all of them before the drawing, to dispose of designated articles by chance.h
c See 2 Holzendorff's Rechts-Lexi. of State v. Clarke, ut supra ; and see con, Leipzig, 1872, p. 74.
ante, $ 2407. d State v. Clarke, 33 N. H. 329; fi Almshouse v. Art Union, 3 Seld. State v. Shorts, 3 Vroom, 398 ; Bell v. 228; People v. Art Union, 3 Seld. 240. State, 5 Sneed, 507; U. S. v. Olney, 1 See Morris v. Blackman, 2 Hurl. & Abbott U. S. 275 ; Com. v. Chubb, 5 Colt. 912. Rand. 715 ; Com. v. Thacher, 97 Mass. g Dunn v. People, 40 III. 465. 583; Dunn v. People, 40 Ill. 465. h Com. v. Manderfield, 8 Phila. R. e Wooden v. Shotwell, 3 Zab. 465. 457,
Meaning of term “ ticket.” — Ticket, under the statute, includes a quarter of a ticket. hi
II. INDICTMENT. § 2430. Where only certain forms of lottery are prohibited, then the indictment must set forth enough of the scheme of lottery, or of the ticket sold, as the case may be, as to individuate the lottery or ticket, and show that the particular scheme or lottery is of the prohibited class. i
It would seem that it is not necessary to set out the full ticket, if enough be given to show it to be illegal.j But, as will be seen, if the ticket be set forth, a variance is fatal. k
§ 2431. Where all lotteries are prohibited by law, it has been ruled not to be necessary to set forth the purport of lottery or ticket. I But, in view of the fact that the term “ lottery " has such a wide general signification, and that it embraces processes all of which none of the statutes have undertaken to declare penal, to charge simply the organizing of a “ lottery,” or the sale of a “ lottery ticket,” is very loose pleading. At all events, the name of the vendee, in case of a sale, should be averred, so as to in some way notify the defendant of the offence with which he is charged. m
It is said, however, that to aver that the lottery was prohibited by law is not necessary in a state where all lotteries are probibited. n
To couple in one count the allegations " offer for sale," and “ sell,” is not duplicity, and so with “set up and promise."O
hi Freleigh v. State, 8 Mo. 606. As to indictment, see as follows :
i Com. v. Manderfield, 8 Phila. R. A count in an indictment, charging 457; State v. Scribner, State v. Bar- the defendant with keeping a common ker, 2 Gill & J. 246; People v. Taylor, gaming-house, and selling lottery tick3 Denio, 99.
ets therein, was held insufficient; and į Com. v. Gillespie, 7 S. & R. 469. also a count charging the keeping an k Ibid. Post, $ 2432.
ill-governed and disorderly room for I State v. Follett, 6 N. H. 53. See the sale of lottery tickets. People v. Com. v. Gillespie, 7 S. & R, 469. Jackson, 3 Denio, 101.
m Wh. Prec. 486; but see post, $ Under the 27th section of 1 Rev. 2445.
Sts. of New York, 665, a lottery which n People v. Sturdevant, 23 Wend. is not for the purpose of disposing of 418.
property is not illegal; and an indicto Com. v. Eaton, 15 Pick. 273; Wh. ment for selling lottery tickets, not Prec. 828 n; Com. v. Harris, 13 Allen, describing the lottery as being for 534. See ante, $ 390; post, $ 2449. such purpose, cannot be supported.