People v. Jones — 35 N.Y.S. 61

Majority

p. 61

(89 Hun, 12.)

PEOPLE v. JONES.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Selling Lottery Policy—Criminal Prosecution—Instructions.

' Where a statute recognizes a distinction between lottery policies and lottery tickets, but fails to state in what it consists, it is error, on prosecution for selling a lottery policy, for the court, in submitting the question of whether the paper was a lottery policy, to charge that it was not a lottery ticket. Brown, P. J., dissenting.

Appeal from court of sessions, Kings county.

Thomas Jones was convicted under the first, third, and fifth counts of the indictment, by which he was charged with selling a lottery policy to one Oram; with being a common gambler, in that he sold a lottery policy to one Oram at a certain place; and with being a common gambler in that he kept a room to be used and occupied generally, and permitted it to be so used, to wit, for selling lottery policies. From the judgment of conviction, he appeals. Reversed.

The paper termed a lottery policy was as follows:

June 9 A. M. 1893.

9, 15, 63.

All Day.

B. 2 10

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

James & Thomas H. Troy, for appellant.

James W. Ridgway, Dist. Atty. of Kings County, for the People.

I regret to express the conviction that the learned trial judge erred in telling the jury that the paper in question was not a lottery ticket. True, the defendant was indicted for selling lottery policies, and, in one sense, it may be said that it was immaterial what the paper was, so long as it was not a lottery policy. But the trouble is precisely this: The statute recognizes a distinction between lottery policies and lottery tickets, but does not state in what it consists. It assumes that somebody knows, and that the distinction is susceptible of proof, and that courts and juries must have-proof on that subject before they can convict. There was proof here that the paper in question was what is commonly known as a lottery policy. The court, notwithstanding this proof, submitted that question of fact to the jury, accompanied by the statement that it was not a ticket. This was apparently a ruling of law, the tendency of which was to help prevent the jury from entertaining a reasonable

p. 62

doubt whether or-not the paper was a lottery policy. Non constat, since the question was submitted to them, the jury might otherwise have entertained a reasonable doubt whether this paper was a ticket or a policy. I am not able to say that this ruling did not prejudice defendant on the other questions.

A new trial should, therefore, be granted.

DYKMAN, J., concurs. BROWN, P. J., dissents.