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Precedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) online

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been so averred In the indictment, because it would have been a necessary ingre-
dient In the description of the offence. As it is not so expressed in the statute,
this rule does not apply ; and the court are of opinion, that the intent to sell gen-

389



(831) OFFENCES AGAINST SOCIETY.

aid and assist in selling, negotiating, and disposing of, five hun-
dred certain lottery tickets and five hundred shares, to wit,
halves and quarter tickets, being tickets for halves and quarters
of prizes drawn to their respective numbers, all of said tickets
and shares being in a certain lottery not authorized by law in
this commonwealth, to wit, in a certain lottery called School
Fund Lottery, for the benefit of public schools in state of Rhode
Island ; against, etc., and contrary, etc. {Conclude as in hook 1,
chapter 3.)

That E. W. D., of, etc., on, etc., at, etc., did unlawfully have
in his possession, with intent to sell it, a certain other lottery
ticket in a certain lottery not authorized by law in said com-
monwealth, to wit, in a certain lottery called School Fund Lot-
tery, for the benefit of public schools in Rhode Island, which
share of a lottery ticket is of the purport and effect following,
that is to say {setting forth ticket)^ against, etc., and contrary, etc.
{Conclude as in book 1, chaj^ter 3.)

That E, W. D., of, etc., on, etc., at, etc., did unlawfully invite
and entice, and attempt to invite and entice, sundry persons
whose names to the said jurors are as yet unknown, to purchase
and receive certain lottery tickets and certain shares, to wit,
halves and quarter tickets, being tickets for halves and quarters
of prizes drawn to their respective numbers, all of said tickets
and shares being in a certain lottery not authorized by law in
this commonwealth, to wit, in a certain lottery called School
Fund Lottery, for the benefit of public schools in state of Rhode
Island ; against, etc., and contrary, etc. {Conclude as in book 1,
chapter 3.)

That E. W. D,, of, etc., on, etc., at, etc., did unlawfully have
in his jiossession, with intent to sell it, a certain other lottery
ticket in a certain lottery not authorized by law in said com-
monwealth, to wit, in a certain lottery' called School Fund Lot-
tery, for the benefit of public schools in Rhode Island, which
share of a lottery ticket is of the purport and eftect following,

frally hciiifr averred in the indictmeDt, in the words of tlie statute, it is siiflicietit,
altli(ni<:li it slioidd l)e held, on trial, tiiat proof" of an intent to sell in anothei" state
only would not brinj^ tlu; ease within th(; statute so us to warrant a eonviction.

"There hein^ several counts in tlie indictment, to which there is no other
exception than the al)Ove, it becomes unnecessary to consider the other alleged
causes lor arresting the judgment."

390



LOTTERIES, ETC. (833)

that is to say {netting forth ticket)^ against, etc., and contrary, etc.
{Conclude as in book 1, chapter 3.)

That E. W. D.,of, etc., on, etc., at, etc., did unlawfully adver-
tise lottery tickets for sale, and shares in lottery tickets for sale,
and did set up and exhibit representations of a lottery and of
the drawing thereof, indicating thereby where a lottery ticket
or a share thereof, and certain lottery tickets and certain sliares,
to wit, halves and quarter tickets, may be purchased and ob-
tained, all of said tickets and shares being in a certain lottery
not authorized by law in this commonwealth, to wit, in a cer-
tain lotterj' called School Fund Lottery, for the benefit of pub-
lic schools in state of Rhode Island ; against, etc., and contrary,
etc. {Conclude as in hook 1, chapter 3.)

That E. W. D., of, etc., on, etc., at, etc., did unlawfully have
in his possession, with intent to sell it, a certain other lottery
ticket in a certain lottery not authorized by law in said com-
monwealth, to wit, in a certain lottery called School Fund Lot-
tery, for the benefit of public schools in Rhode Island, which
share of a lottery ticket is of the purport and effect following,
that is to say {setting forth ticket)^ against, etc., and contrary, etc.
{Conclud.e as in book 1, chapter 3.)

(832) Advertising lottery ticket in same, under stat. 1825, ch. 184.(<:^)

That W. W. C, of, etc., on, etc., at, etc., did unlawfully ad-
vertise, and cause to be advertised, in a certain newspaper by
him published, and called the Evening Gazette, lottery tickets
and parts of lottery tickets, for sale in lotteries not authorized
by the laws of said conmionwealth, against, etc., and contrary,
etc. {Conclude as in book ] , chapter 3.)

(833) Selling lottery tickets in same, under stat. 1825, ch. 184, § \.{e)

That B. E., of, etc., on, etc., at, etc., did unlawfully offer for
sale, and did unlawfully sell to one J. G., one half of a lottery,

{(l) Tliis indictment was sustained on motion in arrest of judffment, it being
held vinnecessary to allege the tickets were advertised as being for sale within
this commonwealth, or to specify the tickets. See Com. v. Dana, ut supi-a.

(e) Com. V. Easton, 15 Pick. '273.

This indictment was resisted on ground of duplicity, it being alleged that to
" sell" and to " offer for sale," were distinct ofll'ences. The court, however, ad-
judged the one offence to be a stage within the other, and sustained the indictment

391



(835) OFFENCES AGAINST SOCIETY.

ticket in a lotterj- not authorized by the laws of this common-
wealth, called the Connecticut lottery, for the erection of a bridge
at Enfield Falls, against, etc., and contrary, etc. {Conclude as in
hook 1, cha.'pter 3.)

(884) Selling ticket in New York.{f)

That, etc., at, etc., on, etc., did unlawfully vend and sell to one
W. II. F. a certain ticket, purporting to be in the Delaware lot-
tery, etc. {describing ticket at large), in contempt of the people of
the state of New York, and against, etc. {Conclude as in book
1, chapter 3.)

(835) Another form for same.

That A. B., etc., on, etc., at, etc., unlawfully did vend and sell
to one a certain ticket, purporting to be in the lottery,

numbered called class number series, with certain com-

bination numbers thereon, to wit, combination numbers
which said ticket purported to entitle the holdei' thereof to one
of such prize as might be drawn to its number, if de-
manded within after the drawing, subject to a deduction
of iifteen per cent., payable after the drawing, which said
lottery on the face of the said ticket purported that the draw-
ing thereof would take place at and was dated in
contempt of the people of the state of New York, and against,
etc., and against, etc. {Conclude as in book 1, chapter 3.)

on demurrer. This principle is consistent witli that established in the analogous
averments of " coiinterfeitiiiff and causing to be counterl'eited," and of "keep-
ing u gaming-house and causing others to game therein." See siiprd, j). 25 et
S' '/. Wliere the oU'ences are of a distinct nature, neitlu'r of tliem capable of
being resolved into tlie other, it is error to join them in the saint! count. Where
they are several in their nature, and yet of sucli a character that one of them,
when complete, necessarily imj)lies the other, there is no such repugnancy as to
make their joinder impro|)er. In fact, under such circumstances, it is less em-
barrassment to tilt! deftiudant to \)v. thus ciiarged, than to have each stage of the
oHence split from the context, and set in a distinct count. Supra, vol. i. p. 25.

It will be observed that in this form the ollence is distinguished by the
description of the lottt^ry in which the ticket was sold, as well as of the vendee.
Some such ear-marks are necessary for the ])rotection of the accused, for if the
defendant Ix! miirciy charged with selling a lottery ticket, there is nothing on
the record to show him wliat to plead.

{/') This count was sustained, it l)eing held unnecessary to aver that the lot-
tery ibr the selling of a ticket in whicli the party was imiicted, was not cxpicssly
authorized bylaw. l*eo|)h! r. Stiu'devant, '2.'} Wend. 4\H. Tlie counts imme-
diately succeeding are more special.

392



LOTTERIES, ETC. (838)

That A. B., etc., at, etc., did unlawfully offer to vend, sell,
barter, furnish, and su[)[ily, and did vend and sell, and cause and
procure to be vended and sold, to one a ticket, and part and

share of a ticket, and a paper or instrument purporting to be a
ticket, and to be a share or interest in a ticket of a certain
lottery, device, and game of chance, not expressly authorized by
law, which said ticket, share of a ticket, paper, or instrument
was and is to the purport following, that is to say, in con-

tempt of the people of the state of Xew York, against, etc., and
against, etc. {Conclude as in book 1, chapter 3.)

(836) Promoting lottery in sarne^ being the form in common use.

That A. B., etc., on, etc., at, etc., the said being unau-

thorized by special laws for that purpose, unlawfully did promote
a certain lottery, called which lottery was set on foot for

the purpose of disposing of money, by exposing to sale tickets
and parts of tickets in the said lottery, and by selling to one
at the ward, city, and county aforesaid, a certain ticket in the
said lottery, called the of a ticket with the combination

numbers thereon, which said ticket was and is numbered

the whole price or value for which said lottery was made
being to the jurors aforesaid unknown, against, etc., and against,
etc. {Conclude as in book 1, chapter 3.)

(837) Carrying on lottery ivhose description is unknown to jurors.{g)

That A. B., etc., on, etc., at, etc., being unauthorized, etc. {as
in last form), did publicly carry on a certain lottery (a more par-
ticular description of which said lottery is to the jurors afore-
said unknown), for the [»urpose {following statute), etc., in con-
tempt, etc., against, etc., and against, etc. {Conclude as in book 1,
chapter 3.)

(838) Selling lottery policy in Pennsylvania under act of March

16, 1847.(/0

That A. B., etc., on, etc., at, etc., unlawfully did sell to a cer-

(//) This count was sustained, tliouixh with much reluctance, by the supreme
court of New York in People v. Taylor, 3 Denio, 91.

[h] Under this act indictments merely averring a sale, but not stating to whom,
or mentioning the ticket, were held insuflicient on demurrer by Kelley, J., in the
Philadelphia quarter sessions, June, 1847. See supra, 828, note.

398



(841) OFFENCES AGAINST SOCIETY,

tain person whose name is to this inquest unknown {or to one A.
£.), a certain lottery policy, contrary, etc., and against, etc. {Con-
dude as in book 1, chapter 3.)

(839) Selling ticTcet in same under same.

That the said A. B. afterwards, on, etc., did unlawfully sell
(and expose for sale : see supra, 828, note x), to one C. D. (or as
in the last courd), a lottery ticket, to be drawn in a lottery in the
state of {naming the state or country)^ contrary, etc., and against,
etc. {Coriclude as in book 1, chapter 3.)

(840) Same under repealed act of March 1, 1883. First count, sale
of ticket, ticket being set forth. {j.)

That X. S., late of, etc., on, etc., at, etc., unlawfully did sell and
expose to sale, and cause to be sold and exposed to sale, a lottery
ticket in a lottery not authorized by the laws of this common-
wealth, which said lottery ticket was in the words and figures
following, that is to say {setting forth the ticket)^ contrary, etc.,
and against, etc, {Conclude as in book 1, chapter 3.)

(841; Second count. Conspiracy to sell a lottery ticket, eic.^ the de-
fendant being singly charged with a conspiracy with others
unknown.

That the said Is". S., afterwards, to wit, on the same day and
year aforesaid, at the city aforesaid, and within the jurisdiction of
this court, together with divers other evil disposed persons to the
jurors aforesaid as yet unknown, did unlawfully and wickedly
conspire, combine, confederate, and agree together, unlawfully
and wickedly contriving and intending to acquire unjust and
illegal lucre to themselves, to sell and expose to sale, and cause
and procure to be sold and exposed to sale, a lottery ticket and
tickets in a lottery not authorized by the laws of this common-
wealth, to the evil example, etc., contrary, etc., and against, etc.
{Conclude as in book I, chapter 3,)

(i) Com. V. Sylvester, 6 Penn. L. J. 383. In this case it was hcM that not
onlv niifrht the statutory misrlemeanor and the common law conspiracy be joine<l,
but that on a verdict of guilty on both counts, the court would impose a separate
sentence on each. Supra, 607, note, 624,

See also Com. v. Gillcsnie, 7 S, & R. 469 ; Com, i-. Canfield, Sup. Ct, March,
1827, No. 30; Com. v. Conine, lb. No. 2<>. As to joinder of conspiracy, see
supra, 607, note, 624 ; Wh, Cr, L. 8th ed, § 1387.

394



LOTTERIES, ETC. (841)

(842) Same in Virginia.(j)

That J. P., etc , since, etc., to wit, on, etc., at the city aforesaid,
unlawful!}' did sell, and cause to be sold, one certain lotter}' ticket
in a certain lottery to be drawn in this commonwealth, to wit, in
a lottery called A. and F. Turnpike Lottery, and then and there
advertised to be drawn at the said lottery not beino; a lot-

tery authorized to be drawn by any contract made with this com-
monwealth prior to the 25th day of February, 1834, or by any
contract made since in pursuance of any law of this common-
wealth passed prior to the said 25th of February, 1834, the
drawing of which lottery was not to extend by virtue of said last
mentioned contract beyond the 1st day of January, 1840, con-
trary, etc. {Conclude as in book 1, chapter 3.)

(843) Selling tickets, under Ohio statute.{k)

That A. B., on the sixth day of January, in the year of our
Lord one thousand eight hundred and fifty-five, in the county
of Hamilton aforesaid, did sell to certain persons, whose names
are to this afiiant unknown, divers, to wit, one hundred, tickets,
for one hundred shares in a certain scheme of chance, called and
denominated the " Capital City Art Union," which said tickets
were not the lottery tickets of lotteries authorized by any law of
this state, contrary, etc.

(844) Opening of a lottery scheme, called the " Western Reserve Art
Unio7i" under Ohio statute.Q)

That A. B., on the first day of March, in the year of our Lord
one thousand eight hundred and fifty-two, in the county of Cuy-
ahoga aforesaid, unlawfull}' did publicly open, set on foot, pro-
mote, and make a certain lottery and scheme of chance, under
the name and denomination of the " "Western Reserve Art
Union," by means of which said lottery and scheme of chance,
the said A. B., and E. F., J. K, W. P., M. P., and W. R., then
and there did expose and set to sale, amongst other things, one
silver lopiue watch, of the value of twelve dollars, one silver

{j) This count was supported in Phalen v. Com., 1 Robinson, 713, 71-1.
(A) Warren's C. L. 355.
(/) Warren's C. L. 355.

395



(845) OFFENCES AGAINST SOCIETY.

lever watch, of the value of fifty dollars, one Buftalo wagon, of
the value of seventy-five dollars, etc., contrary, etc.

(845) Publishing scheme of chance, under Ohio statute.{m)

That A. B., etc., on the seventh day of January, in the year of
our Lord one thousand eight hundred and titty-five, in the county
of Hamilton aforesaid, did unlawfully publish an account of a
certain scheme of chance, called " Grand Mammoth Gift Con-
cert," by then and there printing the same in the {here give the
name of the paper), a newspaper published and printed in said
county, which said publication then and there contained a state-
ment of the time when, and the place where, said scheme of
chance would be drawn, and the prizes therein, the price of the
tickets thereof, and the places where the tickets to the same may
be obtained, which said publication then and there made in said
(give the name of the paper), was of the tenor and etfect follow-
ing, that is to say: "Grand Mammoth Gift Concert. There is
a good time coming. 100 extensive and valuable Gifts, worth
$1289.00. Tickets only $1.00. Tickets limited to 1400. Mr.
A. B., Jr., respectfully announces, that he will respond to the nu-
merous invitations of his host of friends, and give one more gift
concert, at the Melodeon Hall, on Thursday evening, February
22d, 1855. The entertainment will be conducted by the best
musical talent in the country ; the gifts are all valuable and use-
ful in every family, and will be found worthy of attention.
Among them, to which particular attention is directed, is, 1
magnificent rosewood piano-forte, $300.00 ; exhibition of the
Mammoth cave of Kentucky, in perfect order, and cost originally
$1000, $330.00 ; 1 large patent English lever gold hunting watch,
capped and jewelled, $125.00; 1 fine brilliant diamond gold
ring, its intrinsic value $50.00 ; 1 large heavy gold watch, $40 ;
8 splendid new guitars, $75.00 ; 1 splendid table, $18.00 ; 1 extra
large cherry dining table, $12.00; 1 beautiful fine chenille ring,
$15.00; 1 beautiful new style parlor lamp, $12.00; 1 large look-
ing-glass, $15.00. Want of room forbids specifying the other
gifts. They consist of acceptable articles to the ladies, viz.:
fancy washstande, parlor ornaments, with large rosewood frames,

{ni) \\';im'irs C. L. 354.

896



LOTTERIES, ETC. ('^-i^)

large gold lockets, gold specs, silver chains, etc. etc. A full de-
scription will be sent to each patron. The j)roj»rietor does not
wish to humbug his patrons and friends hy offering premiums
seldom awarded to those who will sell the highest number of
tickets, but will allow postn)asters and responsible persons, who
will act as agents, a full remuneration. To clubs, six tickets for
$5.00, larger orders in i)roportion. Remember, tickets are limited
to 1400. First come, first served. For tickets, and other infor-
mation, address, post-paid, A. B., box 1209, Cincinnati, 0. ;"
contrary, etc.

397



OFFENCES AGAINST SOCIETY.



CHAPTER IV.

RIOT, AFFRAY, TUMULTUOUS CONDUCT, RESCUE, PRISON BREACH, ETC.;
RESISTANCE TO AND ASSAULTS ON OFFICERS OF JUSTICE, (a)

RIOT AND AFFRAY.

(846) General frame of indictment for riot.

(847) Affray at common law.

(848) Unlawful assembly and assault.

(849) Riot, and hauling away a wagon.

(850) Riot, in breaking the windows of a man's house.

(851) Riot, and disturbing a literary society, under Ohio statute.

(852) Obstructing authorities, under Ohio statute.

(853) Obstructing authorities and preventing proclamation of riot.

(854) Riot, and refusal to disperse.

(855) Riot, and pulling down a dwelling-house in the possession of prose-

cutor.

(856) Riot, and false imprisonment.

(857) Disturbing the peace, etc., on land occupied by the United States

for an arsenal.

DISTURBANCE OF ELECTIONS.

(858) Disturbance of elections in Massachusetts.

(859) Another form for same.

(860) Interrupting a judge of the election in Pennsylvania.
[_For corrupt interference tvith elections, see infra, 1016.]

DISTURBING RELIGIOUS MEETING.

(861) Disturbing a religious meeting, under the Virginia statute.

(862) Same, under Rev. Sts. Mass. ch. ISO, § 171.

(863) Disturbing a congregation worshipping in a churcli, at common law.

(864) Disturbing same in a dwelling-house.

(865) Dressing in a woman's clothes, and disturbing a congi-egation at

worsliip.

GOING ARMED, ETC.

(866) Going armed, etc., to the terror of the people, at common law.

(867) Carrying a dangerous weapon, under Indiana Rev. Sts.

(a) See Wh. Cr. L. 8th ed. § 1535 et seq.

898



RIOT, AFFRAY, ETC.

(8G8) Maliciously firing guns into the house of an aged woman, and killing
a dog belonging to the house.

(869) Breach of peace, tumultuous conduct, etc., in Vermont.
(869a) Furious driving, under English statute.

(869i) Same against horse-car conductor, under English statute.

REFUSING TO QUKLL HIOT, ETC.

(870) Refusing to aid a constable In quelling a riot.

(871) Refusing to assist a constable in carrying offender to prison.

RESCUE, ETC.

(872) Assault and rescue.

(873) Against two for a rescue, one of them being in custody of an officer of

the marshal's court, upon process, etc.
(87.3a) Rescue of felon from constable.

(874) Assault, and rescuing goods seized as a distress for rent after a

fraudulent removal.

(875) Assault on an officer of justice, and taking from him goods which had

been seized by him on execution.

(876) Rescuing goods distrained for rent of a house.

(878) Prison breach.

ASSAULT ON AND RESISTANCE TO OFFICERS, ETC.

(879) Assault on a constable, etc.

(880) Another form for same.

(881) Second count. Averring arrest of defendant by said constable,

etc., and proceedings before a justice of the peace, upon
which defendant was committed in default of bail, charging
resistance by defendant to the officer when detaining him in
custody.

(882) Resistance to a constable employed in the arrest of a fugitive charged

with larceny.

(883) Resistance to a peace-officer in the performance of his duties ; form

used in New York.

(884) Resisting constable, while serving state waiTant, under Ohio statute.

(885) Resistance to the marshal of the United States in the service of a

writ of arrest.

(886) Refusal to aid a constable in the service of a capias ad respondendum,

issued by a justice of the peace.

(887) Assault with intention to obstruct the apprehension of a party charged

with an offence.

(888) Assault on a deputy-jailer in the execution of his office.

(889) Resisting a sheriff in execution of his office. First count, assault on

sheriff at common law.

(890) Second count. The same under statute, specially setting out the

execution which the sheriff was serving, etc.

399



(846)



OFFENCES AGAINST SOCIETY.



(891) Assault on a police officer of the city of Boston.

(892) Assaulting a person specially deputized by a justice of the peace to

serve a warrant.

(893) Assaulting peace or revenue officers in the execution of their duties.

(894) Resisting an officer of the customs in the discharge of his duty.

(846) General frayne of indictment for riot.

That A. B. (6) late of, etc., C. D., late of, etc., E. F., late of,
etc., with divers evil disposed persons, to the number of ten or
more, to the jurors aforesaid as 3'et unknown, on, etc., with force
and arms,(c') at, etc., did unlawfully, riotously, routously, and tu-
niultuously assemble and meet together(rf) to disturb the peace

(?>) The indictment must aver the common action of at least three alleged
rioters, though of these all but the defendant may be averred to be unknown.
AVh. Cr. L. 8th ed. § 1546. On an indictment for a riot against three or more,
if a verdict acquit all but two, and find them guilty, the finding is repugnant and
void unless the indictment charge them with having made such a riot tot/ether
icith dicers other persnuft unknoicn ; for otherwise it appears that the defendants
are found guilty of an offence whereof it is impossible that tliey should be guilty ;
for there can be no riot where there are no more than two persons. R. ('. Sud-
bury, 1 Ld. Raym. 484; Wh. Cr. L. 8th ed. §§ 82, 1545. A'vhile women are
amenaV)le to the law as rioters, infants of either sex under the years of discretion
are not. Hawk. b. 1, c. 65. s. 14. But where six were indicted for a riot, and
two of them died before trial, two were accpiitted, and two only found guilty,
yet judgment was given upon this verdict ; for, by Lord Mansfield, they must
have been Ibund guilty with one or both of those wlio had not V)een tried, or it
could not have been a riot. R. r. Scott, 2 Burr. R. 1262.

(r) As to this allegation, see Com. v. Runnels, 10 Mass. 518; Wh. Cr. PI.
& Br. §271.

[d] This is essential as laying the foundation for riot. State v. Stalcnp, 1 Ire<l.
30. An unlawful assembly, according to the common opinion, is a disturbance
of the peace by persons barely assembling together with an intent to do a thing
which, if it were executed, would make them rioters, but neither actually execut-
ing it nor making a motion towards the execution of it. Hawk. b. 1, c. 65. See
R. V. Birt, 5 C. & P. 154, and the charge of Tindal, C. J., at Stafford special
commission, in 1842, C. & ]M. 661 ; Wiu Cr. L. 8th ed. § 1535.

" But," Hawkins adds, " this seems altogether much too narrow a definition.
For any meeting whatever of great mimbers of people, with such circumstances
of terror as cannot but endanger the public peace and raise fears and jealousies
among the (jueen's subjects, seems {)roi)erly to be an unlawful assembly ; as
where great numbers complaining of a common grievance (e. </., the inclosure of



Online LibraryUnknownPrecedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) → online text (page 45 of 85)