
    The Commonwealth v. Prentis Chubb.
    November, 1827.
    Statute — Prevention of Sale of Lottery Tickets— Rule of Interpretation.--Tile act of Assembly, passed 11th February, 1825, entitled, “an act to prevent tbe sale of foreign lottery tickets within this Commonwealth,'’ does not come within the operation of the 29th section of the gaming law, and is, therefore, not to be interpreted as if it were a remedial law, but like other penal laws.
    Lottery Ticket — What Constitutes, — A iruarantee. (or written assurance or promise, whereby the warrantor binds himself that he will pay the prize which may be drawn to a certain number in a lottery,) when sold by the proprietor of a lottery, or a duly authorized as'ent of the proprietor, is strictly a lottery ticket, although it is not written in the usual form of lottery tickets j and the sale of such guarantee by such proprietor or his agent, is forbidden by the said act of 1825.
    Same — What Constitutes Saie of. — If an individual’ opens an office, and sells guarantees as a substitute for lottery tickets, he the vendor holding the tickets tb emselves tor the benefit of the purchaser, he sells those things which are substantially lottery tickets, and such sale is forbidden by the said act.
    The defendant was indicted at the Superior Court of Law for the county of Henrico, under the act passed ilth February, 1825, entitled, “an act to prevent the sale of foreign lottery tickets within, this Commonwealth.” The Indictment contained five counts, but the defendant was convicted on three counts only, which are as follows:
    *“Henrico County, to wit: The jurors for the Commonwealth of Virginia, duly summoned to attend the Superior Court of Law for the trial of criminal, causes, directed by law to be holden for the county of Henrico aforesaid, upon their oaths present:
    “That Prentis Chubb, late of the county of Henrico, labourer, on the twenty-second day of June, in the year one thousand eight hundred and twenty-five, at the county aforesaid, and within the jurisdiction of this Court, under a false and feigned pretence of transferring and delivering to one Spotswood D. Crenshaw a certain paper writing, purporting to be signed by certain persons calling themselves Allens, and purporting to guarantee the payment of what a certain lottery ticket, in a lottery called the Union Canal Lottery of Pennsylvania, seventeenth class, would be entitled to, unlawfully did sell the said lottery ticket in the said lottery, being a lottery not authorised by the laws of this Commonwealth, to the said Spotswood D. Crenshaw, and did then and there unlawfully, bargain, contract and agree with the said Spotswood D. Crenshaw, to sell to-him, the said Spotswood D. Crenshaw, and to procure to his order the lottery ticket aforesaid, and unlawfully then and there did act, directly and indirectly, as agent, attorney and proxy for the managers of the said lottery, in the sale of the said lottery ticket, and in the procurement of the same for the said Spotswood D. Crenshaw, under the false and feigned pretence aforesaid, against the form of the act of the General Assembly in that case made and provided, and against the peace and dignity of the Commonwealth of Virginia.
    “And the jurors aforesaid, upon their oaths aforesaid, do further present:
    “That the said Prentis Chubb after-wards, to wit, on the same day and year last aforesaid, at the county aforesaid, and within the jurisdiction of this Court, unlawfully did open, and keep open, a lottery office for trafficking and dealing in lottery tickets other than such as are authorised by *the laws of this Commonwealth, and did then and there unlawfully traffick and deal with one Spots-wood D. Crenshaw, in selling to, and procuring for, the said Spotswood D. Cren-shaw a certain lottery ticket, in a lottery called the Union Canal Lottery of Pennsylvania. the same being a lottery not authorised by the laws of this Commonwealth, against the form of the act of the 'General Assembly in that case made and provided, and against the peace and dignity of the Commonwealth of Virginia.
    “And the jurors aforesaid, upon their •oaths aforesaid, do furthe.r present:
    “That the said Prentis Chubb after-wards, to wit, on the same day and year last aforesaid, at the county aforesaid, and within the jurisdiction of this Court, unlawfully did procure for, transfer and sell to, one Spotswood D. Crenshaw a certain paper writing, signed by certain perso'ns styling themselves Allens, purporting to guarantee the payment of what a certain .lottery ticket would be entitled to in a certain lottery, called the Union Canal Tot-tery, seventeenth class, the said lottery not ■being authorised by the laws of this Commonwealth, against the peace and dignity ■of the Commonwealth of Virginia, and against the form of the act of the General Assembly in that case made and provided. ”
    The defendant having been found guilty by the jury, he by his counsel moved the Court to set aside the verdict, and grant him a new triai on the ground, that the Court had, during the progress of the trial, misdirected the jury on the law of the case. Pending this motion, the defendant asked the Court to adjourn to the General Court the questions arising on that instruction ; and the Court being of opinion, that the ■decision of the highest tribunal ought to be had on this new law, did adjourn to the General Court as a question of novelty and difficulty, the following:
    “Was the instruction given by the Court a misdirection, and ought a new trial to be awarded to the defendant on that ground?”
    *The instruction given by the Judge of the Superior Court of Hen-rico to the jury, was in the following terms:
    “The first question in this case is, how shall this law be construed. The act of Assembly declares, that “in every case that may arise under any laws, for the preventing, discouraging, or suppressing of gaming, the Court shall interpret them as remedial, and not as penal statutes.” It was a rule of construction at the common law, that all penal statutes should be construed strictly: but, this rule of construction, like all other common, law rules, the Legislature had the competent power to ■change. They have expressed their decided intention to change that rule in the case of those penal laws, which are intended to prevent, discourage, or suppress gaming. Is the purchase and sale of lottery tickets an act of gaming? In common parlance it is certainly so considered, and the Legislature obviously so considered it, when they by the act of February 20th, 1812, entitled, “an act to amend an act to reduce into one, the several acts to prevent unlawful gaming,” prohibited the offence of putting up a lottery publicly or privately, to be drawn or adventured for; and when again in 1819, on a general revision of the laws, they not only included the former provision against private lotteries, but the new provision against buying or selling of lottery tickets, in lotteries not authorised by the laws of this State. It is, however, contended, that this rule of construction does not apply to future laws for the prevention, discouragement, or suppression of gaming, but extends only to prior or cotemporaneous laws of that kind. This idea is, however, refuted by the term of the .clause itself: it extends to “every case that may arise under any laws, Sic.” clearly shewing, that all laws, future as well as present, on the subject of gaming, are to be construed by that rule. Another consideration will clearly prove the correctness of this position. When this rule was incorporated in the general law, at the revision of 1819, there was no other law in force on the subject, except that law itself. If it had been intended to *confine the application of the rule to that law only, the language would have been, “In every case which may arise under this law, the Court shall consider it as remedial, &c.”
    “It is urged, that the Legislature did not intend by this act, to suppress or discourage gaming, because they have still tolerated the sale of tickets in our own lotteries ; and that the true and only motive was, to prevent our people from becoming tributary to other States, by purchasing tickets in lotteries authorized by their laws. That this may .have been one of the motives, I am not disposed to deny. One of the effects of this rage for gambling in lotteries,'is to transfer a large portion of our monied capital to the northern cities, to which the Legislature were anxious to put a stop. But, I cannot admit that this was the only motive. The spirit of adventure in lotteries, had infected all orders of men : the rich man and the poor man, the merchant and the mechanic, the lounger and the labourer, the freeman and the slave, had all coveted the smiles of fortune by resorting to the lottery offices : the were all dazzled by the deceitful hope of becoming suddenly rich. Idleness, laziness and prodigality, were the effects of this disposition. To put a stop to these injuries to the morals of the community, as well as to check the northern current by which their wealth was swept away, the Legislature interposed their authority. They have assumed a guardianship over their concerns, by prohibiting, to a certain extent, one species of gambling as they have heretofore prohibited many other kinds of gambling : that they still permit the sale of lottery tickets when authorised by themselves, affords no argument to prove, that they do not consider the dealing in lottery tickets as a dangerous species of gambling. They can always prevent this species of traffic from running into excess, (so far as it consists in the purchase or sale of our own tickets,) by refusing to authorise the drawing of a lottery. But, they have no control over the permission granted by other States to set up lotteries, and they cannot, therefore, prevent the gambling in *those foreign lotteries to any excess, however mischievous, unless they prevent the sale of them altogether. These I apprehend to be the motives which actuate the Legislature in prohibiting the sale of foreign, while they permit the sale of our own, lottery tickets.
    “Whether this guardianship be a wise exercise of power or not, let the moralist and political economist discuss as much as they please. Courts a.nd Juries have only a right to expound the law, and when rightly expounded, to enforce it.
    “This act is then to be construed liberally : the Courts and Juries must put such a construction on it as may suppress the mischief intended to be ■ remedied ; as will guard against all subtle inventions and evasions intended to continue the mischief for private advantage, and give life and strength to the remedy, pro bono publico, according to the true intent of the makers of the law.
    “This brings us to the question, whether a, guarantee, or written assurance, or promise, whereby the warrantor binds himself that he will pay the prize which may be •drawn to a certain number in a lottery, be a lottery ticket, or not, within the true intent and meaning of this law. X think there can be no doubt that if the proprietor of the lottery, or a duly authorised agent of the proprietor, were to issue such guarantees, that they would be strictly and literally lottery tickets. There is no set form of a lottery ticket: it isa written promise that the proprietors will be responsible for the prize; and whether they use the usual form or not, their responsibility is the same: And I am equally clear, that if a man opens an office, from"which he vends assurances, or guarantees, as a substitute for lottery tickets, and for the purpose of evading and defeating the law, although he does not strictly and literally sell lottery tickets, yet he does sel! those papers which are substantially lottery tickets, if it can be proved, or inferred from the evidence in the cause, that he the vendor holds the tickesl themselves for the benefit of the purchaser; for, *in such case, the • vendor would be the bailee of the purchaser, and would be bound to give possession of the ticket to the purchaser when required. The mischief to the public is in such case just as great as the sale and delivery of the tickets themselves.
    “There is one case, in which I know that a sale of a guarantee would not come within the spirit or meaning of the act. If a vendor, without having the possession ot the tickets, or without having any control over them, were to undertake to insure to a purchaser that a certain number should draw a prize in a lottery, and that he would pay the prize when drawn, he would certainly not come within the spirit of the law. •Such an insurance under such circumstances, could never be effected by any man in his senses, except at a price much greater than the usual price of tickets; that increased price, and the knowledge that the purchasser must rely exclusively on the personal responsibility of the vendor, with a certainty that he has no right to. and can never obtain the possession of, the ticket itself, would deter all persons from ■engaging in such traffic; the evil of laying ■out large sums in lotteries could never exist, and there would be no reason for extending the provisions of the law to such rare cases.
    “Whether the defendant comes under one ■or the other of these classes of cases, I leave to the jury to decide, from the evidence which they have heard.”
    The case was argued in the General Court, by Leigh and Chapman Johnson, for the defendant, and by the Attorney General, for the Commonwealth.
    
      
       See principal case cited in Shumate v. Com., 15 Gratt. 656. See monographic note on “Lotteries” appended to Phalen v. Com., 1 Rob. 713.
    
   BOULDIN, J.

delivered the opinion of the Court.

The defendant was indicted in the Superior Court of Henrico, for a violation of the act of February, 182S, prohibiting the vending of tickets in lotteries not authorised by*the laws of this State, and prohibiting the opening of offices for that purpose. On his trial, it appeared that he sold papers signed “Allens,” (of which firm he was a partner,) whereby Allen’s guarantee to the holder what the number on that paper might draw: the name of the lottery appears on the papers, as also the number. After the whole evidence had been given to the jury, and the cause argued, the Judge instructed the jury that such a paper as the one above described, sold by the proprietor of the lottery, is a lottery ticket, though called by him a guarantee ; and that if such paper be sold by another, as a substitute fora lottery ticket, the seller being in possession of the ticket, and holding it for the use of the buyer, and this done to evade the operation of the law, such sale is a violation of the law. But, previous to giving these instructions, the Judge discusses at large the question whether the act of 1825 should be construed as a remedial law under the operation of the act of 1802, and he concludes that it must be so construed, and says, that such conclusion brings him to the question, what is the character of the papers before described? In answer to that question, ne gives one instance, in which he says, such papers are lottery tickets, when sold by the proprietor of the lottery; and one other instance, in which he says their sale would violate the law, when made by others than the proprietor, to evade the statute. He then states the case of a guarantee which would be innocent, and submits to the jury whether the defendant comes under one or the other of these classes of cases. The jury found the defendant guilty, and his counsel moved for a new trial, on the ground, that the opinion delivered by the Judge was a misdirection of the jury; and the questions thence arising are adjourned to this Court. The cause has been argued with great ability both by the Attorney General and the defendant’s Counsel. On the part of the defendant, it is contended, that the act of 1825 is a penal law unaffected by the aci of 1802; first, on the ground that the latter act applies to no other laws than those in existence at the time *it was passed, and also that the act of 1825 is not an act to suppress or discourage gaming within the meaning of the act of 1802; and a majority of the Court are of opinion, that the act of 1825 ought to be construed as all other penal laws are construed : and in this opinion, JUDGES BROCKENBROUGH. ALLEN and SUMMERS do not concur.

It is then contended, and with great force of argument, that the opinion of the Superior Court, that the said act of 1825 should be liberally expounded, was a substantive instruction to the jury; and if so, that opinion being deemed erroneous by this Court, a new trial should be directed of course. We have given this argument our best attention. By some of the Court it is contended, that this conclusion of the Judge, from the opinion itself, forms no part of the instructions given to the jury. It'is perfectly evident, that the range of argument adopted by him was wholly designed to shew the enlarged ground, on which he supposed the instructions which were to follow might be justified. We can see no distinction between this and other cases, where the argument is wrong and the judgment is right. The object of the Judge was to tell the jury what character the law stamps on the papers before the jury, with reference to the case then before the Court; and if that character be given truly and according to law, it matters not whether the Judge would have so delineated it, if he had not supposed greater latitude was to be taken in the construction of the act than is.approved by this Court. But, it is contended, that the circumstances in the cause embrace questions of fact, which might have been solved by the jury in some other way, than simply giving an affirmative or negative answer to the propositions laid down by the Court; and if so, the direct opinion of the Judge, that the law should be so construed as to advance the remedy and suppress the mischief, assumes the character of operative instructions to the jury. This objection was enforced, by supposing cases with an ingenuity, from which, at the time, there appeared to be no escape, and supported by argument wholly unanswerable, *if the premises be true. But, is it true that the case allows of the supposition that these guarantees (as they are called) might have been so sold as to be without the range of either of the direct instructions of the Judge? And could the jury, consistently with those instructions, find the defendant guilty, under the idea that the facts proved only a case of equal mischief? We think not.

The first and second propositions of the Judge embrace every possible case of a sale of the guarantees alluded to. The third states a guarantee not in the case. The first of these propositions is, that such a paper, sold by the proprietor of the lottery, is a ticket; i. e. the sign or symbol of the holder’s interest in the wheel: the second states, what facts the jury must find to constitute guilt, if the paper was sold by any other than the proprietor ; and no case can be conceived that' falls not within a sale by the proprietor or some other person. We therefore think, that (this objection notwithstanding) this case must rest on the propriety of the instructions given to the jury. The objections made to the first of these instructions, are deemed by the Court by far the most important in the whole case, and the attention paid to them at the bar has been proportioned to their importance. The objection is, that the abstract general proposition is too broad ; that supposing the fact, that lottery tickets might assume that form, if those who issue them so please, it should have been left to the jury to find the fact, whether they were issued as, and for, tickets ; and further, the general allegation, that such papers issued by the proprietor, are tickets, is not law ; for, there are cases in which such papers might be issued, where they could with no propriety be called the sign of the holder’s interest in the lottery, and so not tickets. In support of these objections, many caseá were supposed, and with great propriety a demand made, that they should be fairly met and answered. The case supposed, at the time this demand was made, is extremely imposing, and an answer to it includes an answer to the whole objection. It supposes the *case of a guarantee, an insurance simply, as the word imports, that the prize drawn to a particular number shall be paid: that such contract is, or may be, different from the sale of a ticket; to prove which, it is among other things supposed, that he to whom the guarantee was made, was before .owner of the ticket, or that some one else was owner.

This, it is said, is embraced by the terms of the instruction, and the jury must have found the party guilty, had the supposed case been true. An answer to this objection is found in the plain, legal and common sense meaning of the instruction itself. It affirms, that these papers are tickets, when .sold by the propiietor of the lottery:, that in such original direct undertaking, by him who holds the prize, the words “I guarantee,” have no meaning different from “I will pay;” and we cart conceive no form of writing more exactly answering the purpose of evincing the holder’s interest in the lottery, and securing to him the receipt of the prize drawn. There is no imaginable case, where the-holder of the paper in question has not am identity of rights with the holder of any other promise to pay the prize drawn. But,, what is called the real ticket might, it is; said, have been sold to another, and surely-a guarantee that A. shall have the prize-drawn by B’s ticket, is no sale of a ticket. There is nothing more true, than this objection in the form it is urged. But, we: have before seen, that such papers, sold by the proprietor, are tickets, and he in that case has only sold two tickets of the same-number, and bound himself to pay the-prize drawn to each. Whether, therefore, the proprietor has before sold a ticket of: the same number or not, the sale of the-paper in the record is the sale of a ticket. But, the holder may have before purchased-the ticket, and it may have been destroyed: or so obliterated, as that the holder needs. such a paper, as the one in question. To-this objection the answer is, that the instructions of the Court plainly suppose an original sale, and by no fair construction; .can be made to embrace the case of such-collateral undertaking. There was nothing *in the evidence, which, in the most distant manner, alluded to the state of facts supposed by this objection. If the ticket had been purchased out of the State, and afterwards the name or number is obliterated, and the proprietor within the State hand him another ticket of the same number, this is no sale of a ticket under the act, but evidence simply of; the right acquired under a former sale and' purchase: and yet, can it be seriously asked’ whether, when the Court is informing the jury that the sale of such tickets violates; the law, that it would be Heedful to qualify the remark by a statement, that a delivery of such papers, which is no sale, will not have that effect? The qualification the objection supposes, could not be annexed to the instruction given by way of exception to its general operation, because it would not be embraced in its general terms. The furnishing evidence of a former right, or giving further assurance for its enjoyment, comes with no propriety under the idea of a sale; and it was not necessary for the Court to have given that explanation to the jury, since it was entirely plain without it.

The second of the direct instructions to the jury, we think clear of difficulty. The facts there stated, constitute a sale of the ticket to all intents and purposes; nor is the sale less complete, because the ticket is not delivered. Neither does the fact of a superadded warrantee, i: ake the least difference. The purchaser, by the legal effect of his contract, has a right to the ticket, and the seller to the stipulated price; and it is perfectly immaterial how involved and complicated a contract is; if it result in giving the seller the price, and the buyer title to the thing, it is a sale. It is diffi■cult to place the fact of sale in a more clear light, than it is exhibited by the instruction itself; the seller holds the ticket, he sells the guarantee as its substitute; that guarantee contains stipulations binding the signer to the same effects as the ticket binds the proprietor, and the seller thenceforth holds the ticket for the buyer’s use. Whether the ticket be sold by that transaction, depends on what is here meant *by holding the ticket to the use of the buyer: it can mean nothing but this, that the buyer is to have the avails of the ticket, and the use thereof to get those avails ; and what other title can a man have to a bond payable to himself and in his pocket? We confidently say none. The Counsel racked their invention to state cases embracing all the propositions in this instruction, and in which the ticket would not be sold; but, we think they entirely failed.

The opinion here delivered is not in conflict with the authorities cited;'they prove clearly that the thing plainly forbidden must be done, or punishment cannot follow. We deem it unnecessary to go through those cases, but will refer to some of the most prominent. In Mary Mitchell’s Case, 2 East, 936, the Court decided in a prosecution for forgery, that the terms warrant or order in the statute, did not cover the case of an order for, or request to, deliver goods not belonging to the party in whose name the order was drawn : this was certainly a very strict construction of the statute, and subsequent Judges unwillingly have conformed to it. But, does any one think that a rule so rigid would have been adopted in a case of misdemeanor? But, after the construction of the act was thus settled, the question did not turn on the form of doing the thing, but whether it was done. In Hunter’s Case, 2 East, 928, the defect was in the indictment which did not set forth and aver facts constituting a receipt. It is evident, that had all the actual facts been stated in the indictment, the party would have been deemed guilty, but be that as it may, the question in all these cases was, whether the instrument in itself or by proper averments and proof was the thing, the forgery of which, the Legislature declared should be felony. But, in deciding whether the form of the instrument forged was within the statute, the Courts always governed themselves by the answer to the question whether the legal effect of it, if genuine, would be the thing forbidden, and finally came to the conclusion now familiar to all, that the counterfeit might be forgery, though the i»-strument was *so made, as if genuine, it would not be effectual to its purpose, provided it was so near like that which would be effectual, as to deceive ordinary observers. It is decided in Locket’s Case, and several others, that the instrument charged to be forged may be called warrants, provided that in legal effect they are so; even though they pass currently under different names. The question in all these cases is, whether the thing done, is the thing forbidden, and the form of doing it is of little importance.

The following is to be entered as the judgment of the Court.

The Court is of opinion, and doth decide, that the instructions given to the jury, as applicable to this case, were right and proper; and, therefore, no new trial ought to be granted to the defendant on the ground of misdirection. 
      
       Absent, Dade and Sempbe, J.
     