The State versus Jesse Follet

This was an indictment, alleging “ that Jesse Follet, of Concord, &c. on 1st December, 1829, with force and arms, at Concord, in the county of Merrimack aforesaid, unlawfully did sell to one F. E. a part of a ticket; that is to say, one quarter part of a ticket, at and for the price of fifty cents, in a certain lottery not authorized by the legislature of said state, contrary to the form of the statute in such ease made and provided; and against Me peace and dignity of the state. The respondent demurred to the indictment, and the attorney general juiced in demurrer. cited the following cases. 2 D. & E. 5S1, The King v. ¿Mason; Cowper, G82, Rez v. Horne; 1 Strange. 49*. i?o y. Sparling; 2 Strange. Tin v. Pappincau; 2 Burrows, 1127: 4 ditto, 2471: 1 D. k. E. 222, The King v, Trd.iuncy; 2 Pick, 139, Cov.neu-weiilth v. -Maxwell; S Mass. Rep. 107. Corinaoinualin v. Houghton.

Sullivan, attorney general,

cited 5 Pick. 41. wealth v. Clapp; i¿ ibid, 4 2. Coni;,.oawitiJtIi v, Huojwr.

By the court. It is insisted, in this erwe. that the in dictnient is insufficient, because the ticket-a past of which was sold, is not demeribe-.k nor the lottery to which it belonged, stated.

The rule is. that the chame new co.g.ain such a description of the crime, that the respondent may know for what crime lie is to answer, that the jury may appear to be warranted in their conclusión of guilty or not guilty, upon the premises delivered to them, and that the court may see such a definite crime that they may apply the punishment which the law prescribes. Whatever circumstances are necessary to constitute the crime imputed, must be set out, and all beyond this is surplusage. Cowper 682.

It is a’-kged. in this indict meet, that the respondent sold port of a ticket, in a certain h-ticry. not authorised by the legislature of the s'ate Now, according to the r de autr. e-ted, if there were no tickets in any lottery, vniek were not within the prohibition of the statute, +he r 4,110-is here alleged with íUÍiic’cnt certainty. Fur in that cate it is wholly i inma-terial what kind of a ticket was suM, am1 to what lottery •r bc-biiicd MhcnihO'-m, <» ah-h-Lc. j is prohibited. it must be mere surplusage to describe, in the indictment, either the ticket or the lottery.

But if there were any tickets, in any lottery, which might be lawfully sold in this state, the indictment is defective. In that case it ought tobe alleged what the tickets were, or at least to what lottery they belonged, that it might be seen whether the sale was lawful, or not.

These rules are applied in many cases cited by counsel, and in some cases which have not been cited.

8 B. & C. 114, The King v. Everett, 1 Chitty’s Reports, 698.

We are not aware that there was, at the time alleged in the indictment, or that there has been at any time since, any lottery authorised by the legislature of this state, and are of opinion that the indictment must be adjudged sufficient.