
    Commonwealth vs. Shouse, (3 cases.)
    APPEAL FROM BOYLE CIRCUIT.
    S. A sale of property to be paid for at its fair value, or at more than its'fair value, in a certain event of a pending election, and not to be paid for at all, or to be paid for at more or less than its real value, as understood between the parties, in a different event of the same election, is in substance a bet upon the result of the election.
    •2. It is necessary, in an indictment for betting on an election, that a certain individual would or -would not be elected, to aver that the individual was a candidate, or was proposed or voted for for the ‘ office.
    
      1st Case — Pending the election for sheriff of Boyle county, in 1854, the defendant sold to Alex. Sneed, Jr., black cloth and trimmings for a coat, to be paid for when George W. Doneghy was elected sheriff of Boyle county.
    
      2d Case — The defendant is charged with selling to Mason Talbott two and a half yards of black cloth, to be paid for when George W. Doneghy was elected sheriff of Boyle county.
    
      3d Case — The defendant is charged with buying of Lewis Mock a sorrel horse, of the value of f 150, at the price of $300, to be paid for when Jacob Goodnight was elected and chosen sheriff of Boyle county-
    Demurrers being filed and sustained to each of the foregoing indictments, the commonwealth has appealed to this court.
    
      J. Harlan, Attorney General, for the Commonwealth — ■
    The questions arising in these cases being the same, will be presented together.
    The act to prevent the pernicious practice of betting on elections was passed March 6, 1854. (Ses. Acts, 1853-4, page 72.) Whether the averments in these presentments are sufficient to bring the cases within the meaning of that act is the question for the court to decide.
    Nos. 1 and 2 were sales made, to be paid for when Doneghy was elected sheriff. Is not that one mode of betting on' the result of the election ? Shouse bets his black cloth against the money of Sneed and óf Talbott. If Dónéghy wás elected Shouse Was to be paid for his cloth, otherwise not. The value of the cloth was the stake in each case, and the election determined the result.
    No. 3 is a sale by Mock to Shouse, of a horse worth $150 for $300, if Goodnight was elected sheriff óf Boylé. We have a fight to presume that Doneghy and Goodnight were the candidates for the sheriffalty at the election; in August, 1854, that being the regular and constitutional period for the election of that officer.
    According-to adjudications by this court this was,, in effect, a bet on the election for $150. If Goodnight was Hot elected Shouse would be a gainer to the extent of $150 — the real value of the horse — but if elected Mock would gain the same amount — -that is, $150 over and above the value of the horse. — ■ (Bevil, ¿pc. vs. Hix, 12 B. Monroe, 140.) In the case of Commonwealth vs. Kirk, 3 B. Monroe, 2, this court say : “Such construction should be given to the statute (to suppress betting on elections) as will accomplish the object intended.” It is also said, in the same opinion, that “the object of this statute was to protect the right of suffrage, to preserve the purity of the elective franchise, and to secure perfect freedom and impartiality in the exercise of this inestimable right.” {Page 1.)
    It seems to me, therefore, that all of these cases come within the spirit and meaning of the act referred to, and that the Circuit Court erred in sustaining demurrers thereto.
    
      BeU 4* Fox for appellee—
    The act of the legislature of 1853-4, {Session Acts, 72,) provides “that if any person or persons shall wager ‘ or bet any sum of money, or anything of value, upon ‘ any election under the constitution and laws of this ‘ commonwealth, or under the constitution and 1 aws ‘ of the United States, he or they so offending shall ‘ forfeit and pay $100 each, tobe recovered by indictment.” {Ses. Acts 1853-4, page 53.)
    The indictment in this case was doubtless intended to be under this statute, but we apprehend is fatally defective in failing to charge facts which amount to an offense embraced by the statute.
    The facts charged are that the defendant Mock did sell to Thomas C. Shouse a sorrel horse of the value of $150, and the sum ard price of $300, to be paid token Jacob Goodnight should be chosen and elected, on the first Monday in August, 1854, to fill the office of sheriff of Boyle county, at an election to be held on said first Monday in August, 1854, under the constitution and laws of the commonwealth of Kentucky, to choose and elect a citizen to fill the office of sheriff of Boyle county.
    Unless the court regard the words “sell the horse, to be paid when Goodnight should be chosen sheriff,” as being equivalent to or synoriimouswith bet and wager upon his election, the indictment must be regarded as fatally defective. Wé insist that on the face of the indictment nothing is charged but a sale, the price of which was to be paid when a particular event happened.
    1. A sale of property to be paid for at its fair value, or at more than its fair value in a certain event of a pending election, and not to be paid for at all or to be paid for at more or less than its real value, asunder-stood between the parties, in a different event of the same election, is in substance a bet upon the result of the election.
    The indictment fails to charge that Goodnight was a candidate for election, or that he had any competitor, or that any election was held for the sheriffalty at August, 1854, in that county.
    Though the Code of Practice dispenses with mere forms, yet it requires still that acts constituting the offense should always be charged to make the indictment good.
    We insist that no acts are charged which amount to the offense denounced by the statute against betting on elections, and hence that the indictment was rightfully adjudged bad on demurrer, and we believe that the judgment should be affirmed.
    These suggestions apply to all three of the cases.
    December 5.
   Chief Justice Marshall

delivered the opinion of the Court.

We have no doubt that a sale of property, to be paid for at its fair value — or at more than its fair value — in a certain event of a pending election, and not to be paid for at all, or to be paid for at more or less than its real value, as understood between the parties, in a different event of the same election, is in substance a bet upon the result of the election; and any variation in the mere form of the transaction, or in the words describing it, will not change the substance of the thing, if it appear that the real effect is intended tobe that one party may lose and the other may gain money or property, or the representative of either, according as an election may terminate for or against a particular person, or may result in one way or another. In any such case the transaction, in whatever form it may be clothed, is really a bet upon an election ; and if the election be one authorized and protected by the laws, and of which the purity and freedom are of public interest and importance, the transaction, both on the ground of public policy and of statutory inhibition, is illegal, and has, by the statutes of this state, been generally made penal. But it is not a penal offense, under any statute, to bet that a certain individual will not be elected to a certain office at a certain election, unless he is a candidate for that office, or is voted for to fill it, or is intended or expected to be voted for, or is expected to be a candidate for it. It is not a statutory offense to bet that a man will not be a candidate for a particular office; and unless he be a candidate, or be voted for or proposed, it may not be an offense to bet either that he will or that he will not be elected. There must be an election taking place, or about to take place, in which he is or will be a candidate, or proposed in some way for the choice of the electors.

2. It is necessary in an indictment for bet ting on elections that a certain individual would or would not be elected, to aver that the individual was a candidate, or was proposed or voted for for the office.

While therefore we are of opinion that each of these indictments states facts which may show that the defendant made a bet on the election or non-election of a certain individual to the office of sheriff of Boyle county, at the election of 1854, we are of opinion that it is defective in not stating that he was a candidate, or voted for, or in any manner proposed to the electors to be chosen for that office at that election.

Wherefore the judgment in each case is affirmed.  