Long v. State

Bowler, <L, delivered the opinion of the Court. The plaintiff in error, Calvin Long, was indicted in the Criminal Court of Baltimore for violating the Act of Assembly of 1886, chapter 480, which has been codified as- ' section 185 of Article 21 of the Code, and which reads as follows : “No person or body corporate shall he permitted, either directly or indirectly, by agent or otherwise, to barter, sell, trade, or to offer for barter, sale or trade, by any publication, or in any way, any wares, goods or merchandise of any description, in package or bulk, holding out as an inducement for any such barter, sale or trade, or the offer of the same, any scheme or device by way of gift enterprises of any kind or character whatsoever.” The indictment contained two counts — the first charging that the said Long unlawfully sold certain merchandise, holding out as an inducement for such sale, a. certain scheme and device, by way of gift enterprise; and the second, that he kept a certain place or house for the purpose of selling lottery tickets. At the trial the State abandoned the second count, relating to the sale of lottery tickets, and elected to stand upon the first count. The plaintiff in error then demurred to the indictment upon the ground that the Act of Assembly of 1886, chapter 480, codified as above mentioned, upon' which the first count is based, is void.

This demurrer was overruled, and, having been duly tried and convicted, said Long appealed to this Court from the rulings of the Criminal Court as to the admissibility of certain testimony. Long vs. State, 73 Md., 527 . We affirmed the ruling of the lower Court and remanded the case for further proceedings. A final judgment having been entered a writ of error was sued ont, assigning a number of errors.

All of them, however, present the same question, namely, whether the Act referred to is a valid exercise of legislative power. ⁵⁶⁹ This is the only question here presented. It was not before us on the former appeal, for we then assumed that, the Act was valid. The legislation we are considering is one of a class of laws which have been enacted in almost all the States, in order, if possible, to prevent lotteries .and gambling from entering into the ordinary transactions of life. We find many cases, some of them being referred to by the Attorney-General in his brief, illustrating the necessity of such laws to restrain the introduction into mercantile transactions of lottery schemes and gambling devices like the one the plaintiff in error used in his business.

We said on the former appeal that such a device had not even the'merit of originality, and it undoubtedly violates the provisions of our Code' prohibiting lotteries “and all devices and contrivances designed to evade ” said provisions. The ingenuity and fertility of invention which has been exercised in efforts to evade such laws would, no doubt, win success in legitimate-lines of business. It would unduly prolong this opinion to review the man} cases referred to upon the briefs. All of those relied upon by the State are cases in which there was an indictment under the laws prohibiting lotteries, and in which it was held the several devices or contrivances adopted involved chance.

The case of People vs. Gillson, 109 N. Y. Rep., 389 , is the one chiefly relied upon by the plaintiff in error. We will consider it presently. In Hull vs. Ruggles, 56 N. Y. Rep. 424 , the exigency of the case required the Court to determine and define what is a lotteiy, and they laid down this definition : “ Where a pecuniaiy consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottef3.” Worcester’s definition is : “A game of hazard in which small sums are ventured for the chance of obtaining greater value. ” ⁵⁷⁰ And the definition adopted by the State in this case is not materially different from the above. “ Any scheme for the distribution of prizes by lot, or which one on paying money to another obtains a token, which entitles him to receive a larger value oLnothingas some formula of chance may determine, is a lottery.” In one respect, we think all of these definitions are too narrow to cover some of the modern devices resorted to in order to evade the lottery laws, and that whether the consideration paid or given for the token, or chance to win something, generally called a “ prize ” consists of money or any other thing of value makes no difference. An examination of the many cases on this subject will show that it is very difficult, if not. impossible, for the most ingenious and subtle mind to devise any scheme or plan, short of a gratuitous distribution of property, which has not been held by the Courts-of this country to be in violation of the lottery or gaming laws in force in the various States of the Union.

In the case of