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Meaning of term "ticket."-Ticket, under the statute, includes a quarter of a ticket. h1

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. 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. 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 prohibited. n

To couple in one count the allegations" offer for sale," and "sell," is not duplicity, and so with "set up and promise." o

h1 Freleigh v. State, 8 Mo. 606.

i Com. v. Manderfield, 8 Phila. R. 457; State v. Scribner, State v. Barker, 2 Gill & J. 246; People v. Taylor, 3 Denio, 99.

j Com. v. Gillespie, 7 S. & R. 469. k Ibid. Post, § 2432.

7 State v. Follett, 6 N. H. 53. Com. v. Gillespie, 7 S. & R. 469.

See

m Wh. Prec. 486; but see post, §

2445.

As to indictment, see as follows: A count in an indictment, charging the defendant with keeping a common gaming-house, and selling lottery tickets therein, was held insufficient; and also a count charging the keeping an ill-governed and disorderly room for the sale of lottery tickets. People v. Jackson, 3 Denio, 101.

Under the 27th section of 1 Rev. Sts. of New York, 665, a lottery which

n People v. Sturdevant, 23 Wend. is not for the purpose of disposing of

418.

o Com. v. Eaton, 15 Pick. 273; Wh. Prec. 828 n; Com. v. Harris, 13 Allen, 534. See ante, § 390; post, § 2449.

property is not illegal; and an indictment for selling lottery tickets, not describing the lottery as being for such purpose, cannot be supported.

It is sufficient, however, when the indictment is for setting up a lottery, or for having tickets in possession with intent to sell, to follow the words of the statute.p

III. EVIDENCE.

§ 2432. A variance as to the ticket, when it is set forth, or as to the terms it offers, if it be only given in substance, is fatal. q

People. Payne, 3 Denio, 88. The indictment should contain either a particular description of the lottery, or assign as a reason that a more particular description of the lottery was unknown to the grand jury; and an averment merely that the name of the lottery was unknown to the grand jury is insufficient; but it is not necessary that the indictment should set forth the amount of the lottery. People v. Taylor, 3 Denio, 99. It is not necessary to set out the tickets sold, or the names of the purchasers, it being alleged that the names were unknown to the jurors. People v. Taylor, 3 Denio, 99.

The publication in New York of an advertisement of a lottery to be drawn in a place where such lottery is not unlawful is an indictable offence; and if the indictment set forth the advertisement in hæc verba, showing that the lottery was for the purpose of disposing of money or property, it is sufficient, although the purpose of the lot tery is not otherwise alleged in the indictment. People v. Charles, 3 Denio, 212, 610.

The act to prevent raffling and lotteries was intended to prevent the sale of lottery tickets in the state, whether the lottery was established here or elsewhere. And an indictment for vending lottery tickets need not allege that the lottery was established in this state. An indictment for vending a lottery ticket need not expressly aver that the ticket was of

a lottery established or set on foot for the purpose of disposing of real estate, goods, money, or things in action. The character and description of the lottery need not form the subject of an express averment. It is sufficient if these appear argumentatively in the indictment, especially after verdict. The People v. Warner, 4 Barb. 314.

Under the revised statutes (1 R. S. 665, § 28) it is a misdemeanor to publish in this state an account of a lottery to be drawn in another state or territory, although such lottery be authorized by the laws of the state where it is to be drawn.

It was accordingly held, that a demurrer to an indictment, which charged the defendant with publishing in the city of New York an account of a lottery to be drawn in the District of Columbia, was not well taken.

Where the indictment charged the defendant with publishing an account of an illegal lottery, and set forth in hæc verba the lottery scheme, which showed that the prizes consisted of sums of money; held good, although it was not otherwise averred that the lottery was set on foot for the purpose of disposing of money, lands, &c. Charles v. The People, 1 Comstock, 181.

p Com. v. Dana, 2 Metc. 329; Com. v. Horton, 2 Gray, 69.

q Com. v. Gillespie, 7 Serg. & R. 469; Whitney v. State, 10 Indiana, 404.

CHAPTER V.

ILLICIT SALE OF INTOXICATING LIQUORS.

I. LICENSE:

ITS AVERMENT,

PROOF, AND EFFECT, § 2434.

II. WHAT IS EVIDENCE OF A "COMMON SELLER," OR OF A TIPPLING-HOUSE, § 2437.

4. STRONG BEER, § 2440.

VI. HOW FAR MEDICAL USE IS A
DEFENCE, § 2441.

VII. HOW FAR IGNORANCE IS A
DEFENCE, § 2442.

III. PRINCIPAL RESPONSIBLE FOR VIII. AUTREFOIS ACQUIT, § 2443.
ACT OF AGENT, § 2438.

IV. AGENT'S RESPONSIBILITY FOR
PRINCIPAL, § 2439.

V. WHAT MAY BE CONSIDERED
SPIRITUOUS OR "INTOXICAT-
ING" LIQUORS UNDER THE
STATUTES, § 2440.

1. COMMON CORDIAL, § 2440.

2. BRANDY OR GIN, MIXED WITH
SUGAR AND WATER, § 2440.
3. UNADULTERATED GIN, BRANDY,
OR RUM, WITHOUT PROOF THAT
THEY ARE INTOXICATING, § 2440.

IX. FEME COVERTS, § 2444.

X. AVERMENT AND PROOF OF
VENDEE, § 2445.

XI. AVERMENT AND PROOF OF
SALE, § 2447.

1. AVERMENT, § 2447.

2. WHAT ARE SALES, § 2452.
3. PROOF OF SALES, § 2454.
XII. PENAL RESPONSIBILITY
VENDEE, § 2463.

XIII. CONSTITUTIONALITY
QUOR LAWS, § 2464.

OF

OF LI

§ 2433. THE statutes of the several states regulating or prohibiting the sale of intoxicating liquors are so numerous, so various, and so constantly the subject of repeal or amendment, that it is not proposed to introduce them under this head. All that can be here attempted is to classify such of the decisions under them as may be of general application.

It may at first be noticed that a tippling-house, or house for the sale of intoxicating liquors, when noisily and offensively conducted, is a nuisance at common law, and as such indictable. a At present our object is limited to the statutory offences so far as they are capable of a common analysis. a1

I. LICENSE: ITS AVERMENT, PROOF, AND EFFECTS.

1. Negation of License.

§ 2434. As a general rule, the indictment should negative the

a See ante, § 2392.

al For forms of indictment, see Wh. Prec., as follows:

(792) Presuming to be a common seller of wine, under Maine statute.

license. If the negation of the license to sell is as to quantity, coextensive with the quantity charged to be sold, it is sufficient. The general negation, "not having a license to sell liquors, as aforesaid," relates to the time of sale, and not to the time of finding of the bill, and will suffice. c "Without being duly authorized and appointed thereto, according to law,” is a sufficient negation. d

How provisos and exceptions in statutes are to be treated, has already been discussed. e

2. Proof of License.

§ 2435. It is for the defendant to prove he is licensed, the prosecution not being bound to prove a negative. ƒ It is specially

(793) Selling liquors by retail in New

Hampshire.

(794) Retailing in liquor, &c., without license, under s. 1, c. 83, Verm. Rev. Stat.

(795) Selling liquor by the small,

under the same.

(796) Selling liquor, &c., under Mass.

Rev. Stat. c. 47, s. 1.
(797) Another form under same sec-
tion.

(798) Under Rev. Stat. c. 47, s. 2.
(799) Another form under same.
(800) Under Rev. Stat. c. 47, s. 2.
(801) Another form uuder same.
(802) Another form under same.
(803) Another form under Rev. Stats.
c. 47, s. 2, where defendant is li-
censed to sell wine.

(804) Another form under same.
(805) Another form under same.
(806) Another form under same.
(807) Selling liquor without license,

under Mass. Rev. Stats. c. 47, s. 3.
(808) Another form under same.
(809) Another form under same.

(815) Same in Virginia.

(816) Same in North Carolina.
(817) Same in Alabama.

(818) Same in Kentucky.
(819) Same in Tennessee.
(820) Same in Mississippi.

b Ante, § 378-80; Com. v. Thurlow, 24 Pick. 374; State v. Webster, 5 Halsted, 293; Hampton's case, 3 Gratt. 590; State v. Munger, 15 Ver. 290; State v. Horan, 25 Texas (Supp.), 271; Com. v. Smith, 6 Bush, 303. Indictment need not aver defendant not to be a "druggist," &c.; Surratt v. State, 45 Missis. 601; Riley v. State, 43 Missis. 397; see also State v. Buford, 10 Missouri, 703; State v. Fuller, 33 N. H. 259; State v. Blaisdell, 33 Ibid. 388.

As has been seen (ante, § 378), the whole question depends on the principle underlying the statute. c State v. Munger, 15 Ver. 290.

d Com. v. Keefe, 7 Gray, 332; State v. Fanning, 38 Mo. 359; Com. v. Conant, 6 Gray, 482. See State v. Hornbreak, 15 Mo. 478; State v.

(810) Violation of license laws in Andrews, 28 Mo. 17; Com. v. Boyle,

Rhode Island.

(811) Same in New York.

14 Gray, 3.

e Ante, § 378.

(812) Same in New Jersey.

(813) Same in Pennsylvania.

that used in Philadelphia.

f State v. Morrison, 3 Dev. 299; State v. Crowell, 25 Me. 174; R. v.

(814) Another form for same, being Turner, 5 M. & Sel. 205; R. v. Han

son, Paley on Conv. 45, n.; 1 Car. &

held in Massachusetts, that the Stat. 1854, c. 102, imposing upon the defendant the duty of proving a license in all prosecutions for selling "spirituous" liquors, applies to the Stat. 1850, c. 232, against selling "intoxicating" drinks. g

3. Effect of License.

§ 2436. A license having been granted to one man to keep a tavern in a particular house, from which he afterwards removed; another being indicted for retailing spirituous liquors in that house, may show that he did it as the agent or partner, and under the charge of him to whom it was granted; and may, on that ground, be acquitted by the jury. h But a license is no protection to a partner whom A. subsequently takes, when the license is, not to keep a tavern, but to sell liquor. i And, generally, a license to one cannot be assigned to another. j

A license to sell liquor, granted to two persons as partners, will, during the period mentioned in the license, protect one of the partners against the penalty for selling without a license, although the other has retired from the firm. k

The grant of a license to retail spirituous liquors, from a day past, is a release of the penalties for retailing without license subsequent to that day, although prior to the taking out of the license. l

A license to sell spirituous liquors has no relation back to the date of the order of the county court granting permission to obtain it, and will only protect one who sells from and after the date of its issue. m Nor will a license "to keep a dram-shop, block No. 15, in the city of St. Louis," justify a sale in any other place in St. Louis. n

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