Opinion
No. 35705.
March 12, 1945.
1. STATUTES.
Unless the contrary sufficiently appears, words in a statute are to be interpreted according to their usual and most common sense, and as they would ordinarily be understood by public in general.
2. LOTTERIES.
To "put up a lottery," within statute making it a felony to put up a lottery, does not mean simply to operate lottery, but is to provide whatever is necessary for its operation, that is, the capital, necessary paraphernalia and plan or set-up for the operation (Code 1942, sec. 2279).
3. LOTTERIES.
Proof that defendant was operating a lottery does not cast upon him burden of showing that he did not "put up the lottery," within meaning of statute making it a felony to put up a lottery (Code 1942, sec. 2279).
4. CRIMINAL LAW.
Where indictment, in addition to charging defendant with felony in having put up a lottery, charged further offenses which under other statutes relating to lotteries were misdemeanors, and proof failed to establish that defendant put up a lottery, but did show operation of lottery in violation of statutes making it a misdemeanor, general verdict of guilty as charged was sustained and judgment was reversed for proper sentence (Code 1942, secs. 2270, 2278, 2279).
ALEXANDER, J., and SMITH, C.J., dissenting.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
Jackson, Young Phillips, Ernest L. Shelton, and Will S. Wells, all of Jackson, for appellant.
Section 2270 of the Code of 1942 condemns the one who puts up a lottery to be drawn or adventured for.
Kirk v. State, 69 Miss. 215, 10 So. 577; Jenkins v. State, 96 Miss. 461, 50 So. 495; Hutchinson's Code of 1848, Chap. 64, Art. 3(23); Code of 1857, Chap. 64, Art. 141; Code of 1871, Secs. 2734, 2735; Code of 1880, Secs. 2851, 2979; Code of 1892, Secs. 1199-1298; Code of 1930, Secs. 1038-1047; Code of 1942, Secs. 2270-2279; Constitution of 1890, Sec. 98, Art. 4.
The term "put up a lottery," used in Section 2270 of the Code of 1942, means to provide whatever is necessary for the lottery, that is, in order to raise money for himself, for another or for some designated purpose, to put up in this state, (1) the prize or money to be drawn or adventured for, (2) the paraphernalia necessary, and (3) the scheme and means of operation.
To constitute a violation of the statute it is not necessary that there be evidence of an actual operation of the lottery, for the statute condemns him who puts up a lottery to be drawn or adventured for.
Commonwealth of Pa. v. Banks, 98 Pa. Super. 432; Thomas v. State (N.J.), 4 A. 327; Dorbert v. State (Md.), 11 A. 707; Com. v. Dana (Mass.), 2 Metcalfe 329.
The evidence in this case is insufficient to sustain a conviction for the offense of putting up a lottery under Section 2270 of the Code. To constitute a violation of the statute there must be in this state (1) the putting up of a prize or the money to be drawn or adventured for, (2) the paraphernalia necessary, and (3) the scheme and means of the operation for the purpose of raising money for oneself, another or for some designated purpose. Every element of the crime is essential. The competent evidence tends to show that the appellant might be connected in some way with the operation of a policy game, that is, that he acted as agent or servant or that he received money and tickets for the policy house or that he delivered prizes or money for such policy house, but it is not sufficient to show that this appellant put up the lottery or was acting with or concerned in the putting up of a lottery. Otherwise, every agent or servant or everyone that works for a policy house would be guilty of the offense of putting up a lottery the same as the one who put the lottery up. This is not the intent of Section 2270 of the Code. The statute is aimed at the one who puts up a lottery in this state, not the one who operates a lottery or assists in the operation of a lottery.
An examination of the cases from other jurisdictions on the sufficiency of the evidence to sustain a conviction in violation of the lottery statutes will disclose that these cases have been decided under lottery statutes, the wording of which are more far reaching than Section 2270 of the Code of 1942, which condemns the putting up of a lottery.
Compare Code of 1942, Sec. 2270; Alabama Code of 1940, Sec. 275, Title 41; 22 Florida Statutes, Sec. 849.09; Code of Georgia, Sec. 26-6502; 9 Annotated Laws of Massachusetts, Sec. 5, Ch. 271; Louisiana Code of Criminal Procedure — Dart, Criminal Statutes Annotated, Sec. 1071; 13 Missouri Revised Statutes Annotated, Sec. 4704; Vernon's Penal Code of Texas, Art. 634-533; New Jersey Statutes Annotated, Title 2: 57-8; McKenney's Consolidated Laws of New York, Annotated, Sec. 1372; Smith-Hurd Illinois Annotated Statutes, Criminal Code, Sec. 406, Ch. 38; Lotteries, Key No. 29.
In order to prove the guilt of a person accused with the putting up of a lottery, the burden rests upon the state to offer that measure of proof which the law requires to satisfy the jury beyond a reasonable doubt and to a moral certainty, after a consideration of all the evidence, that the defendant is guilty of the offense charged.
Ewing v. State (Miss.), 9 So.2d 879; Johnson v. State, 186 Miss. 405, 191 So. 127; Loggins v. State, 161 Miss. 272, 136 So. 922; Garland v. State, 130 Miss. 310, 94 So. 210; Miller v. State (Miss.), 35 So. 690; Lamb v. State, 118 Miss. 693, 79 So. 849; King v. State, 74 Miss. 576, 21 So. 235; Creed v. State, 179 Miss. 700, 176 So. 596; Lyle v. State, 193 Miss. 102, 8 So.2d 459; Rutledge v. State, 171 Miss. 311, 157 So. 907; White v. State, 146 Miss. 815, 112 So. 27; Abele v. State, 138 Miss. 772, 103 So. 370; Moore v. State, 188 Miss. 546, 195 So. 695; City of Hazlehurst v. Byrd, 101 Miss. 57, 57 So. 360; Cumberland v. State, 110 Miss. 521, 70 So. 695; Fitts v. State (Ala.), 195 So. 561; Reynolds v. State (Ala.), 189 So. 793, 193 So. 192; Howard v. State (Tex.), 91 S.W. 785.
The same rule of evidence applies in cases involving a violation of the lottery law in its several phases as it does in all other criminal cases and there should be no distinction in an application of these rules for the reason that the accused is charged with an offense of this character.
Fitts v. State, supra; Reynolds v. State, supra; Reynolds v. State, supra.
The court erred in entering a judgment finding the defendant guilty as charged in the indictment and sentencing him to two years in the state penitentiary. The appellant was sentenced under the wrong statute. The indictment attempts to charge the defendant not only with the putting up of a lottery, and owning and maintaining a lottery, but further charges the defendant with the operation of a lottery, the selling of tickets and the paying out of money by chance drawing. The indictment undertakes to cover Sections 2270, 2271 and 2278 of the Code of 1942, but none of these sections are specifically referred to in the indictment. A cursory reading of this record will show that this appellant was indicted, tried and convicted for operating a lottery.
When the facts which constitute a criminal offense may fall under either of two statutes, or when there is substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment.
Grillis v. State, 196 Miss. 576, 17 So.2d 525; 24 C.J.S. 1193, Sec. 1979, Note 75.
The theory of the state in the indictment, proof and instructions was that the offense committed by the appellant was the operation of a lottery, the selling of tickets through himself or through others and the paying out of money by chance drawings. There is grave doubt in this case as to which statute the appellant should have been sentenced under and the rule in Grillis v. State, supra, should apply, for the evidence merely tended to show the commission of a misdemeanor. The cause should be remanded to the lower court for a proper sentence under Section 2278 of the Code of 1942.
Summarizing the state's contention herein as we understand the brief of the Attorney General, it is argued that: (1) Since there is evidence herein that appellant assisted in, or was connected with, the operation of a lottery; and (2) "to operate" a lottery is "to establish" a lottery; (3) since "to establish" a lottery means "to put up" a lottery, the act condemned by Section 2270, Code of 1942, under which appellant was sentenced to the penitentiary; therefore (4) appellant by being connected with the operation of a lottery, was an accomplice to "putting up" a lottery. This is specious but fallacious reasoning. But, such was the reasoning of the court below and is the reasoning of the Attorney General here. It will be noted that the indictment charges that appellant did (1) "publicly put up," (2) "own," (3) "maintain" and (4) "operate" a lottery. No one knows on which of these charges the jury found appellant guilty. Nevertheless the lower court reasoned that if the jury found him guilty of either of these acts, he was an accomplice to "putting up" a lottery; therefore, on a verdict of guilty by the jury he was accordingly sentenced to the penitentiary for a felony. Under this fallacious reasoning it was not necessary for the state to prove that appellant "put up" a lottery, but simply that he was connected with the operation of a lottery. Such is the contention of the Attorney General on this appeal. This was manifest error in the court below and is not sustainable reasoning on this appeal. If the state made out any case at all it was for the operating of a lottery under Section 2278 of the Code of 1942, and this is a misdemeanor. The theory of the state in the indictment, proof and instructions and the theory of the Attorney General is that the appellant was operating a lottery. If the proof is sufficient to sustain a conviction for the operation of a lottery, then appellant should be sentenced under Section 2278 of the Code of 1942 for a misdemeanor, and not under Section 2270 for a felony, on the ground that as a misdemeanor under Section 2278 he was an accomplice to the felony thereby prohibited.
Kirk v. State, 69 Miss. 215, 10 So. 577; Code of 1942, Secs. 2270, 2271, 2278, 2279.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant, A.L. Clark, was indicted on a charge of putting up and operating a lottery, contrary to statute, Section 2270 of the Code of 1942, which indictment was not challenged by demurrer or otherwise in the court below. The appellant was convicted and sentenced to a term of two years in the state penitentiary. The appellant's principle contention is that the evidence did not make out the case under Section 2270 of the Code of 1942, and that the evidence was insufficient to show that the defendant violated any of the lottery statutes, but, at most, he was only guilty, if guilty at all, under some of the statutes, of a misdemeanor.
Counsel for appellant insist that the proof is insufficient to convict the appellant of a felony. I think the testimony is abundantly sufficient to sustain a conviction and none of the facts testified to by the state witnesses are contradicted nor was the general reputation of any of the witnesses impeached in any respect. It clearly appears that the first witness for the state, Jesse Travis, was employed by the defendant, and that he saw the defendant at the place where the lottery was located, and where the balls were manipulated and drawn, and saw Mr. Clark shaking the sack prior to the drawing, and that Mr. Clark paid the witness for his share, and the witness Gammill testified that the defendant, Clark, paid the rent by check. It abundantly appears that the sacks were left, containing tickets and money, at two places in the City of Jackson and the pick-up man carried these sacks to the place of the lottery on the Pocahontas Road, just outside the City of Jackson. The witness Travis and witness Gray both identified the appellant, Clark, as being connected with the lottery and manipulating drawing, etc.
Counsel for appellant seems to ignore the effect of Section 1995, Code of 1942, which provides: "Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not." Under this statute each of these places in the City of Jackson where sacks and tickets were deposited, and where they were afterwards picked up and carried to appellant's place on the Pocahontas Road was an agency of the appellant for the purpose of operating a lottery, and each of the persons at those places who assisted the appellant in operating the lottery by receiving the tickets and money and turning them over to the pick-up man, were accessories before the fact, though the drawing did not take place until after the sacks had been collected and carried to the place of the appellant. It is true that none of these parties appear to have been indicted, nevertheless, they were the agents of the appellant, Clark, employed by him, and paid by him, and he appeared to be in charge of the lottery where the drawing took place on the Pocahontas Road; consequently, they were guilty of being accessories before the fact, though not indicted and tried and they were also Mr. Clark's agents, employed by him, and paid by him, to assist in his business of operating a lottery and were active in securing business and aiding the appellant in operating his place of business.
It is admitted to be the law in Mississippi that a person may be convicted on the uncorroborated testimony of an accomplice and witness Travis and witness Gray gave material and convincing evidence against the appellant and were not impeached in any manner known to the law and their testimony is not improbable on its face, but on the contrary is corroborated by all of the testimony in the case. Every fact that these witnesses testified to material to the issue must be accepted as true as the jury accepted it as true, and any reasonable inference that can be drawn from these facts to support the verdict of the jury must be drawn. There is not a single fact tending to show that the testimony of these witnesses was untrue or improbable. The appellant did not see proper to testify in his own behalf and while, under the law, no affirmative proof can flow from the failure to testify as affirmative evidence of guilt, yet, not denying what the witness testified to, impliedly accepted the truth of the evidence and all reasonable inferences that the jury could and did draw from it as being true. In other words, the testimony is undisputed by the appellant, although he could have disputed it, being a competent witness for that purpose and, therefore, it must be assumed that it is true and that he recognized it as being true.
It is urged in the brief that the proof does not show that the appellant operated the lottery for his personal benefit, and that the indictment specifically charges that he did operate it for his personal benefit or gain, and that the indictment must affirmatively be sustained by evidence from witnesses. This is not true. The court judicially knows, and the jury also judicially know, that the general purpose of operating a business is for personal gain. That is the underlying motive in engaging in business, of all kinds, being the usual and ordinary purpose for which business is operated. There is not a suggestion in the evidence that the defendant Clark was operating the business for anyone else or for any other purpose than of gain. The fact that he was operating it and paying those who aided him and the fact that he collected money through these agents who assisted in operating the business, warranted the jury in finding that he was operating it for personal profit or gain. However, the statute prohibits this operation for any purpose whatever, or its operation for any other person whatever. There is no merit in the contention that the appellant was not operating the property for himself.
Appellant next assigns for error that the court erred in entering judgment, "Defendant guilty as charged" and sentencing him to two years in the penitentiary; that the state knew that the defendant was sentenced under the wrong statute; that the indictment attempted to charge the defendant not only with the putting up of a lottery, and owning and maintaining a lottery, but further charged the defendant with the operation of a lottery, the selling of tickets and the paying out of money by chance drawing. I submit that the statute cited, Section 2270, Code of 1942, fixes the punishment at imprisonment in the penitentiary not exceeding five years. He was convicted under this statute under competent and proper evidence and was properly sentenced to the penitentiary. The fact that other statutes under the heading of "Lotteries" in chapter on "Crimes and Misdemeanors" does not warrant the court in sentencing the defendant as for a misdemeanor. What the proof shows the defendant did was to operate a lottery and employed persons to assist him in so doing, and to secure places in the City of Jackson where his business could be promoted. He was present at the place where the lottery was conducted, apparently in control, and undisputably shook up the sack of balls which was required before a drawing, and was an act committed that would bring him within the statute of being guilty as principal, whether he actually owned the lottery or not. Appellant in his brief contends that the specific offense referred to in Section 2270 is "put up a lottery to be drawn or adventured for;" that nothing is said about the operation of the lottery or the sale of tickets, or paying out of money, or the delivering of a prize by chance drawing. The language of the statute to "put up a lottery" clearly means to establish a lottery, which implies securing of the place where the lottery is to be operated and the operation of it. It does not mean the putting up of a structure, or a building, or a house, or an office building, but clearly means the preparation of a place for the operation and operating a lottery. The words "put up" appears in the statute, but are to be construed in connection with other parts of the statute and so construed, means the establishment of a lottery in order to raise money for himself or another, or for any purpose whatever.
Compare Anderson v. Faulconer, 30 Miss. 145.
The mischief to be prevented by the statute was the operation of the business known as a lottery and not the mere erection of a building for its operation. It was designed to punish the establishment of such a business and its operation to the public detriment. The term "put up" is an ordinary expression used colloquially rather than strictly grammatically, but interpreted in the light of experience and common sense the meaning is as above stated. The case of Grillis v. State, 196 Miss. 576, 17 So.2d 525, is in no wise applicable to this case. Interpretation of the statutes involved in the Grillis case, owing to the language used in two different statutes, rendered the statutes ambiguous.
Argued orally by Forrest B. Jackson, for appellant, and by Geo. H. Ethridge, for appellee.
The proof shows that within the territorial jurisdiction of the trial court three policy houses had been in operation, and that appellant as the houseman was in charge of the operations of one of them called the Liberty. The general plan included the service of writers who would issue tickets upon which the ticket purchaser, called the player, would select a number or numbers from 1 to 78, and a triplicate of the ticket would be delivered to him and another would be retained by the writer, while the third with the purchase money would be deposited in a bag with others, and later the bag and its contents would be delivered to the pick-up man, who in turn would deliver them to the house. Twice a day 78 balls numbered from 1 to 78 would be put in a suitable bag by the houseman and shaken, and then there would be drawn from the bag 12 of the balls and the numbers on the twelve would designate the winners. The prizes in money would then be given to the pick-up man, who in turn would carry it to the respective winners. It is not contended, as it could not be, that this is not a lottery, and in one of its lowest forms at that.
There are ten sections in the Code, Title 11, Chapter on Crimes and Misdemeanors, which deal with the subject of lotteries. Under the first section, Section 1038, Code 1930, Section 2270, Code 1942, the offense is made a felony, and under each of the other nine sections, a misdemeanor.
Section 1038, section 2270, reads as follows: "If any person, in order to raise money for himself or another, or for any purpose whatever, shall publicly or privately put up a lottery to be drawn or adventured for, he shall, on conviction, be imprisoned in the penitentiary not exceeding five years."
No case in this state or elsewhere has been found which has passed upon the question as to what is meant by the expression "put up a lottery." We must depend, therefore, entirely on the ordinary and familiar rules of construction which are that we must conclude, unless the contrary sufficiently appears, that the words of a statute have been employed in their usual and most common sense and as they would ordinarily be understood by the public in general. State v. Lee, 196 Miss. 311, 17 So.2d 277, 151 A.L.R. 1143. What, then, would be understood when we say that John Doe has put up a business, or more specifically that John Doe has put up a mercantile business? We would understand that he has procured a place for it and therein has installed shelves and counters, together with the other necessary equipment, and has stocked it with the merchandise therein to be sold, and has authorized it to be opened for trade. If thereupon he has employed Richard Roe to operate or conduct the business, Roe would not thereby have put up a business but would be operating a business already put up by another.
Or, if we say that John Doe has put up a mill or a gin, Richard Roe by subsequently operating it could not for that reason alone be said to have put it up. Suppose it were a felony in this State to put up a saloon, would a person employed therein to sell the liquors be guilty of the felony of having put up the saloon, instead of the misdemeanors of making sales?
There is a close analogy between the expression here under consideration and the term used in gambling statutes which make it a criminal offense to set up a gaming table. And on this subject, also, few cases are found; but there is one such case, well considered, in Commonwealth v. Burns, 4 J.J. Marsh., Ky., 177, wherein the distinction between setting up a gaming table and the keeping of such a table is pointed out. There it was held that "to set up a gaming table, is to provide whatever may be necessary for the game, and either by acts or words, to propose to play it," and that a person who subsequently kept the game, that is to say, who operated it, would not for that fact alone be the person who set it up.
It has been contended, however, that every new drawing, or every occasion on which a drawing is made, amounts to another and a new putting up of a lottery. Upon the same argument and with equal reason it could be contended that every morning when an established mercantile store is opened for business there would be another and a new putting up of the business. And besides this, Section 1047, Code 1930, Section 2279, Code 1942, deals with cases wherein the putting up is for a single occasion, and that is a misdemeanor.
We conclude, therefore, that to put up a lottery is not to operate it, but is to put up or provide whatever is necessary for its operation, that is to say, to put up or provide (1) the capital, (2) the necessary paraphernalia, and (3) the plan or set-up for the operation.
The indictment against appellant charged that he "did then and there wilfully, unlawfully and feloniously, in order to raise money for himself, publicly put up, own, maintain and operate a lottery to be drawn or adventured for, commonly called policy, a gambling game for money, further description of which is to the grand jurors unknown, and operated same by selling lottery tickets therein . . . and paid out money by chance drawings therein to divers persons to the grand jurors unknown."
It will be observed that the charge is not confined to that of having put up a lottery, which is a felony, but charged further offenses which under subsequent sections of the statutes are misdemeanors. No motion was made to have the state elect upon what particular charge it would proceed but the trial went forward under the indictment as presented. There was no proof that appellant had put up the lottery as that term has been above defined. For all that the proof shows, the lottery may have been in operation somewhere within the same vicinity for sometime before appellant ever had any connection with it whatever. And we think that the suggestion that proof that appellant was operating the lottery casts upon him the burden to show that he did not put it up would be to introduce a novel proposal in criminal law, wherein the burden to prove the charge is always on the state. The defendant here is not availing of an exception or excuse or justification but stands upon the want of proof that he was guilty of the felony.
The proof does show, however, that he did receive money for the lottery and that he did deliver prizes for it, and this is undisputed. This would bring him within Section 1046, Code 1930, Section 2278, Code 1942, and since there was a general verdict of guilty as charged, we sustain the verdict but reverse the judgment as to the penitentiary sentence, and remand so that a fine and jail sentence may be imposed under the section last cited. See Goins v. State, 155 Miss. 662, 124 So. 785, and Grillis v. State, 196, Miss. 576, 17 So.2d 525.
Affirmed in part, and reversed and remanded for proper sentence.
DISSENTING OPINION.
The record reveals that appellant was doing what the indictment charged, and what the statute prohibited. It was entirely consistent with a finding of guilt, and the jury so found. Appellant is being excused because the state did not negative what it was under no duty to disprove. Despite proof sufficient to make a prima facie case of guilt, he is exonerated by our having imported into the record for his benefit those speculative possibilities which we have so often condemned as insufficient and irrelevant grounds for conviction.
Let it be supposed that appellant is, in fact, the original genius of the enterprise. He could well be, and for all that is shown to the contrary he is entitled to complete credit for its activation. Nevertheless, he would be acquitted of his responsibility, contrary to the demands of justice, because of the possibility that the accusing appearances might be contrary to a fact which the defendant alone knew. The jury have a right to convict on circumstantial evidence, even as the defendant has the duty to rebut a prima facie case. Here the complete control of the paraphernalia and of the agents employed is sufficient to show that he inaugurated the project. His possession of the several devices and of the funds for distribution is presumptive evidence of his ownership.
If the writer of the opinion had the power and propensity to set up such a scheme and to conduct it as did appellant, he would be unquestionably guilty. Yet it could be undertaken with the judicial assurance that, despite his complete independence in conception and execution, there would be indulged in his favor a presumption that he was acting at the suggestion and instigation of a superior. And so this rampant view once loosed to serve such operator would run to the aid of his superior and defend him with the same assumption of a subordinate role. This interesting scene would be re-enacted successively as the ingenuity and industry of detection proceeded anew to the man yet higher up. Only the man highest up whose pride of invention forbade the concession of a superior mind, would be guilty.
It does not matter why the appellant put in operation the lottery, nor whether the idea was original with him or that he is beholden to some superior inventive genius. If he performed all the acts which an independent and original scheme required, he is at least prima facie guilty as a principal or an accessory.
The majority opinion states that he was in charge of the lottery. Each day he set in operation with instrumentalities in his possession and through agents under his control, a complete lottery. He paid off the winners with funds which he possessed and which presumptively were his own. It is true the appellant could be convicted for the constituent offenses, even as one charged with murder could be convicted of assault and battery, or pointing or carrying a pistol. On the other hand, his pickup men, had they distributed the tickets, drawn the lottery, and paid the winners should be convicted for putting up the lottery. It is not here relevant that, by their proof of an agency, they could be found guilty of a lesser charge.
The circumstances shown, being consistent with guilt, placed a procedural burden on the accused. He is being excused by a reasoning which would acquit a murderer upon the speculative possibility that a third party, by nudging his elbow, had caused an accidental discharge. Such defense, of course, would be good, if true. But it is to be supplied not by the theory of the court, but the testimony of the defendant.
The opinion of the Court states: "For all that the proof shows the lottery may have been in operation somewhere within the same vicinity for some time before appellant ever had any connection with it whatever." That is, of course, a possibility. Yet, for all the appellant showed, he may have been its inventor. More to the point, as far as the proof does show, he was.
It is not believed, deferentially, that illustrations drawn from the saloon or mercantile business are apt. The scheme here was not a tangible thing like a counter or a table which could be set up. It was an idea. It was to be activated by conduct. It could not be set up as goods or equipment. The Court has borrowed the wisdom of Commonwealth v. Burns, 4 J.J. Marsh., Ky., 177, decided a hundred and fifteen years ago. An ancient statute was there being construed which prohibited the "setting up" of a gaming table. The court, while conceding that to "set up" and to "keep" a gaming table were for all practical purposes synonymous, stated: "It must be construed as a penal statute." It seems to be disregarded that the statute here involved is to be given a liberal construction. Code 1942, sec. 2202. In the Kentucky case it is interesting to notice that the court defined "setting up" a gaming table as meaning "to provide whatever may be necessary for the game, and either by acts or words, to propose to play it." Such is the situation in the instant case. A further test was whether there was a "banker" or one who paid off the winners, as distinct from one who manually installed the devices or merely managed the playing. But, here, the appellant performed all these functions. In the Burns case there were two persons in charge of the gaming, one who dealt the cards and the other, Burns, who harvested the winnings. That court was confronted with the difficulty of distinguishing between one who manually "set up" a gaming table and one who "kept" it, and its labored distinction could have been foregone if, as here, there was only one head and the person who set the scheme in operation each day furnished all the equipment and paid winners from his own purse.
The difficulty of interpreting the phrase "put up a lottery" is less than that of getting more apt words to describe the establishment of the scheme. Whatever word is selected is aimed at the one about whom the project revolves. He who activates the idea or carries it out for his own benefit puts it up. In a literal sense he puts up the money and the tickets. We should not be at pains to construe him out of jail with mere assumptions, nor give to his accusing silence an exculpatory voice.
Appellant was the hub of a wheel in which his several agents were the spokes. In its rim were the prospective victims of the scheme. It was not a wheel within a wheel. Its completeness in structure and operation lacked nothing. He could, therefore, in fact be guilty. It was for the jury to say. He could possibly have been innocent of that which the facts and the appearances accused him. It was for him to explain.
To the practical difficulties of uprooting a nefarious practice we have added technical obstacles and have compelled the state both to prove guilt and to disprove a defense which the defendant does not assert.
Smith, C.J., concurs in this opinion.