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People v. Noelke

94 N.Y. 137 Court N.Y. Decision date 1883-11-20 English

Delivered by Finch, J.

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p. 137
The People of the State of New York, Respondents, v. Charles D. J. Noelke et al., Appellants.

Headnote

The word “lottery” indicates a scheme for the distribution of prizes and for the obtaining of money or goods by chance.
It is not essential, therefore, in an indictment, under the provisions of the statute•(! R. S. 666, § 39) prohibiting the sale of lottery tickets, to set forth the purpose for which the lottery was set on foot, i. e., that it was for the purpose of setting up for sale, or disposing of any species of property.
It seems that one who purchases a lottery ticket for the purpose of detecting and punishing the vendor, not with intent to aid in the commission of
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the offense, is not an accomplice within the meaning of the provision of the Code of Criminal Procedure (§ 399), declaring that a conviction cannot be had upon the uncorroborated testimony of an accomplice.
Neither the provisions of the Federal Constitution, giving to Congress power to regulate commerce among the States, nor that which forbids the passage of any law impairing the obligation of contracts, prevents a State from passing laws prohibiting the making of contracts within its jurisdiction, which are deemed immoral or against the public policy of the State.
The State, therefore, may prohibit the sale, within its jurisdiction, of tickets in a lottery organized in another State, and which is lawful under the laws of that State ; and a sale of such tickets is a violation of said statutory provision.
Ornes v. Dauchy ( 82 N. Y. 443 ), Van Voorlds v. Brintnall (86 id. 18).
Upon trial of an indictment, charging the violation of said provision, defendant was called as a witness in his own behalf ; on cross-examination he was asked whether he had been engaged in the business of lottery tickets, and lottery policies ; also whether he had been tried and convicted of violating the law prohibiting the sending of lottery circulars through the mail. These questions were objected to, and objections overruled. Held no error.
People v. Crapo ( 76 N. Y. 288 ), People v. Brown (72 id. 671), Ryan v. People (79 id. 694), distinguished.
(Argued October 25, 1883 ;
decided November 20, 1883.)
Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 27,1883, which affirmed a judgment of the Court of General Sessions, in and for the city and county of New York, entered upon a verdict convicting defendants of a violation of the statute prohibiting the sale of lottery tickets. (Mem. of decision below, 29 Hun, 461 .)
The indictment charged that the defendants unlawfully sold to one Mattocks “ a part of a ticket in a certain lottery not expressly authorized by law, commonly called ‘ The Louisiana State Lottery ’ * * * which part of a ticket is as follows, that is to say
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Mattocks, who purehas&d the ticket, was the witness for the prosecution to prove the sale. He made the purchase for the purpose of making the proof, and so convicting defendant. It was objected, on the trial, that he was an accomplice, and so that a conviction could not be had under the Code of Criminal Procedure (§ 399) upon his testimony uncorroborated. The court charged the jury that they could not convict on the testimony of the accomplice unless he was corroborated by other evidence tending to connect defendant with the crime charged. Further facts appear in the opinion.
Charles W. Brooke for appellants.
The indictment should have stated the object or-purpose for which the lottery was made or carried on. (1 R. S. 665, § 27; People v. Payne, 3 Denio, 88 -90; People v. Taylor, id. 94, 95, 101 ; People v. Charles, id. 213 ; 1 N. Y. 185 ; People v. Warner, 4 Barb. 315 , 316; Comm. v. Manderfield, 8 Phil. 457 ; 27 Leg. Int. 86 ; Hull v. Ruggles, 56 N. Y. 427 ; Grover v. Morris, 73 id. 476 ; Code of Crim. Proc., § 276.) Louisiana lottery tickets are articles of commerce, of value, and the subject-matter of
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contract, valid where issued, and the law which makes the contract, under which they are purchased, void and penalizes the seller, and confiscates all values, dependent upon their drawings which may he brought within its territory, not only impairs the sanctity of contracts, but undertakes to regulate commerce in the same. (Const. U. S., art. 1, § 8, subd. 3; id., art. 1, § 10; 2 Peters, 449; 3 Story’s Com., § 1379; Panics v. Quackenbush, 1 N. Y. 129 ; Ormes v. Dauchy, 82 id. 443; Van Voorhis v. Brintnall, 86 id. 18; Thorp v. Thorp, Daily Reg., Jan. 8, 1883.) The fact that a witness has been a convict cannot be shown by his own testimony, even on cross-examination, for the purpose of impeachment. (Tifft v. Moor, 59 Barb. 626 ; 1 Greenl. on Ev. 457; Newcomb v. Griswold, 24 N. Y. 299 -301; People v. Crapo, 76 id. 291-292; People v. Wentz, 37 id. 309. )
John Vincent for respondent.
The statute of Louisiana, authorizing the incorporation of the Louisiana State Lottery Company, was wholly immaterial. Our law declares every lottery unlawful and á common and public nuisance. (1 R. S. 665, § 26.) The Louisiana statute, therefore, could not legalize the act of the defendants in this State. (Kohn v. Kohler, 21 Hun, 466 ; Wilkinson v. Gill, N. Y. 63; Sturtevant v. People, 23 Wend. 418 ; Warner v. People, 4 Barb. 314 ; Charles v. People, 1 N. Y. 180 ; Dana v. Comm., 2 Metc. 329 ; Terry v. Alcott, 4 Conn. 442 .) In order to constitute an accomplice, a party must be aiding and assisting the accused with criminal intent. (Reg. v. Mullen, 3 Cox’s O. C. 526, 531; Wright v. State, 7 Tex. Ct. App. 545 ; State v. McKeon, 36 Iowa, 343 ; Comm. v. Downing, 4 Gray, 29 ; Campbell v. Comm., 84 Penn. St. 187 , 197; St. Charles v. O’Mailey, 18 Ill. 407 , 412; People v. Farrell, 30 Cal. 316 ; Harrington v. State, 35 Ala. 236 , 242; People v. Smith, MSS. Op., Gen. Term N. Y., 1883; affirmed by this court.) The law forbids the sale of lottery tickets, not the purchase. (1 R. S. 666, § 29; Comm. v. Hilliard, 22 Pick. 476 ; Harrington v. State, 35 Ala. 236 , 242.) It was not necessary that the indictment should describe
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the purpose or object of the lottery, or that it was intended for the purpose of chance, or of obtaining money, goods or valuable things. (Pickett v. People, 8 Hun, 83 ; People v. Taylor, 3 Denio, 91 , 95, 96; Code of Crim. Proc., §§ 284, 285; People v. Warner, 4 Barb. 314 ; United States v. Noelke, 17 Blatchf. 554 , Worcester’s Dictionary; Wilkinson v. Gill, 74 N. Y. 63 , 66; Hull v. Ruggles, 56 id. 424 ; United States v. Olney, 1 Abb. [U. S.] 275, 283; Bell v State, 5 Sneed [Tenn.], 507; Dunn v. People, 40 Ill. 465 ; Thomas v. People, 50 id. 163; Randle v. State, 42 Tex. 581 ; Haloman v. State, 2 Tex. Ct. App. 600 ; Ralfe v. Delmar, 7 Robt. 80; Wooden v. Shotwell, 3 Zabr. [N. J.] 465; State v. Mumford, 73 Mo. 647 ; Bishop on Statutory Crimes, § 952; State v. Clark, 33 N. H. 329 , 335; Ree’s Cyclopedia.) The court, having charged substantially all that defendants were entitled to, could not be called upon to repeat it. (People v. Walker, 88 N. Y. 89 .)

Upon the principal questions in this case the opinion of the General Term is so accurate and full as to make unnecessary any repetition of its reasoning in expressing our concurrence. It holds that the indictment was sufficient because the word “ lottery,” if it has no technical legal meaning, as this court has said ( Wilkinson v. Gill, 74 N. Y. 63 ; 30 Am. Rep. 264 ), and is to be construed in its popular sense, indicates a scheme for the distribution of prizes and for the obtaining of money or goods by chance; and that any possibility of doubt founded upon the use of the word is dispelled by the further allegation which sets out the form of the ticket charged to have been sold, which refers on its face to the “ monthly two-dollar drawing,” and in terms “ entitles the holder thereof to one-half of such prize as may be drawn by its number in the within named drawing, if presented for payment before the expiration of three months from the date of said drawing.” (People v. Warner, 4 Barb. 314 .) It may be added that the Penal Code (§ 323) now defines a “ lottery ” with all needful accuracy and precision. We have attentively considered the authorities cited by the appellants, and the criticism to which they have subjected

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the averments of the indictment, but remain satisfied that it plainly disclosed and sufficiently charged the substance of the offense forbidden by the statute.

The General Term also held that if Mattocks was to be deemed an accomplice, the court gave to the defendants the full benefit of the rule of the Code (Crim. Proc., § 399), that a conviction could not be had upon the uncorroborated evidence of an accomplice, hut that Mattocks was not an accomplice, and so discussion upon the rule or the evidence under it was rendered unnecessary. We agree that Mattocks was not an accomplice, since he purchased the ticket to detect and punish a crime, and not with intent to aid in committing one. From the point of view of the prosecution he was a detective ; from that of the defendants a spy, or informer; but in no sense a party to the criminal act or intent so as to become an accomplice.

The further contention that because this lottery was lawful under the law of Louisiana, and its tickets issued represented value, and were property, their sale in this State could not be prohibited without violating the provisions of the Federal Constitution, which give to Congress the power to regulate commerce among the several States, and forbid the passage of any law impairing the obligation of a contract, was properly characterized by the General Term as “ a very extraordinary proposition.” The .learned counsel for the appellants cites recent decisions of this court as indicating a drift in the direction of his argument, and founded upon a logic which involves his conclusion. (Ormes v. Dauchy, 82 N. Y. 443 ; 37 Am. Rep. 583 ; Van Voorhis v. Brintnall, 86 N. Y. 18 ; 40 Am. Rep. 505 .) Neither of these cases furnishes the slightest ground for a construction which would repeal our penal laws' against lotteries, or make them absolute nullities. In the first of these cases the precise question was whether the contract sued upon was a violation of our statute. It did not appear that the advertising of lotteries was to be done in this State, or was in fact done in this State, nor that where contracted to be done it was illegal by the law of the locality. And the recovery was sustained for the reason that our statute against lotteries was in

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no manner infringed. The second of these cases respected the status of the parties to a marriage contract, made in another State and valid where made, but which would have been invalid if made within our jurisdiction. Both cases rested upon the undeniable truth that our law could have no extra-territorial operation, but neither intimated that within our jurisdiction we could not forbid the making of contracts deemed immoral and against our public policy. There is no impairment of a contract obligation by our law against lotteries. We prohibit the making of certain contracts within our boundaries. The statute does not undertake to say what contracts may or may not be made under a foreign law; and no question is here of a contract valid elsewhere, or as to property brought within this State. It does not even appear that the lottery ticket had ever been issued, or acquired any value of its own, or became a valid obligation anywhere, when attempted to be sold within our jurisdiction. We cannot impair what does not exist, We forbid the contract within our borders; we do not tamper with an existing valid obligation. In the present case no valid contract was or could have been made in this State. One never came into existence either as between Mattocks and the defendants, or Mattocks and the lottery, which under our law was valid or effectual. What happened was purely the violation of a criminal statute, and it made no difference that the lottery itself was authorized by the laws of Louisiana. (People v. Sturdevant, 23 Wend. 420 ; Charles v. People, 1 N. Y. 184 ; Grover v. Morris, 73 id. 476.) Our statute destroys no vested right of property innocently acquired, and in no manner regulates commerce between the States.

The defendant, Noelke, was examined on his own .behalf, and on cross-examination certain questions were asked, which it is urged were erroneously permitted. One of these questions was, whether since prior to 1877 he liad been engaged in the business of lottery tickets and lottery policies. Another was, whether he had been tried and convicted in the United States court for violating the law prohibiting the sending of matters through the United States mail with reference to the drawing

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of any lottery. In People v. Crapo ( 76 N. Y. 288 ; 32 Am. Rep. 302 ), the prisoner was on trial for burglary and larceny, and having taken the stand as a witness in his own behalf, was asked on cross-examination if he had been arrested on a charge of bigamy. This court held the question inadmissible, and stated the true rule to be that the disparaging questions must either be relevant to the issue, or such as clearly go to impeach the moral character and credibility of the witness. In People v. Brown ( 72 N. Y. 571 ; 28 Am. Rep. 183 ), the question asked the party testifying in his own behalf was how many times he had been arrested, and it was held inadmissible. In Ryan v. People ( 79 N. Y. 594 ), the witnesses were asked if they had been indicted. This court, recognizing the right to put questions to a witness as to specific facts which tend to discredit him or impeach his moral character, held that the fact of an indictment could not produce such result, since it was merely an accusation and innocence was presumed. In People, ex rel. Phelps, v. Oyer and Term., Co. of N. Y. ( 83 N. Y. 460 ), we said of this class of questions that our control over them was not absolute, and that, as a general rule, the range and extent of such an examination is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character ; and to the same effect was People v. Casey ( 72 N. Y. 393 ). The Penal Code provides that “ a person heretofore or hereafter convicted of any crime is, notwithstanding, a competent witness in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or his cross-examination, upon which he must answer any proper question relevant to that inquiry.” (§ 714.) Within these rules both questions put to the defendant in this case were proper. We cannot say that the first was not pertinent to the issue. The evidence of the party-on his direct examination is not given, but we can see that if for a period of time covering the alleged illegal sale to Mattocks, the witness was engaged in the lottery business, it would make much more credible the
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testimony of the informer. But at least a fact was inquired about, which was not merely a charge or accusation, but the actual commission of a crime, and an affirmative answer must necessarily have tended to discredit the witness. The second question was admissible for the reason last named, and was within the rule of the Penal Code. Other objections taken by the appellant it is not deemed necessary to discuss.

The judgment should be affirmed.

All concur.

Judgment affirmed.

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