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count

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Q. S. of

York Co. jurisdiction of this court, with force and Commonwealth v. French

arms, &c., feloniously, wilfully and maliciously did enter the premises of one

Carl E. Becker in said county then and Criminal law---Indictment--Felonious there situated, with an intent the goods

and chattels, inoneys and property in the entry Larceny and receiving stolen said premises then and there being felgoods.

oniously to take, steal and carry away,

contrary to the form of the Act of the an indictment intended charge felonious entry which gives no de- General Assembly in such case made and scription or particulars of the premises en provided and against the peace and digtered other than the name of the owner is

nity of the Commonwealth of Pennsyldefective and should be quashed.

vania. Counts of an indictment charging larceny and receiving stolen goods in which the stol

(2) And the Grand Inquest aforesaid, en goods are described as “a lot of fresh beet upon their respective oaths and affirmasufficient information of the charge he is to tions aforesaid, do further present, that meet to enable him to prepare for his de- the said Thomas French afterwards to fense, or to protect him from a second pros- wit: On the same day and year aforeviction on the first indictment, and should said, at the county aforesaid, and within be quashed.

the jurisdiction of this court, with force Motion to quash the indictment in and arms, &c., a lot of fresh beef dressed, Commonwealth vs. Thomas French, No. of the value of one hundred dollars, of 62 April Sessions, 1924, in the Court of the goods and chattels, moneys and proQuarter Sessions of York County, Pa. perty of Carl E. Becker, then and there Motion sustained.

being found, then and there feloniously

did steal, take and carry away, contrary W’illiam Luria, for motion.

to the form of the Act of the General W'. W'. Van Baman, District Attorney, Assembly in such case made and providcontra.

ed, and against the peace and dignity of

the Commonwealth of Pennsylvania. Ross, J., June 23, 1924.-A motion to

(3) And the Grand Inquest aforesaid, quash the indictment found in the above upon their oaths and affirmations aforenamed case was duly filed by defendant's said, do further present, That the said counsel, for the following reasons: Thomas French, afterwards, to wit: On

“1. The said indictment is indefinite the same day and year aforesaid, at the as to the kind, quantity and description county aforesaid, and within the jurisof the property stolen.

diction of this court, with force and The said indictment is defective arms, &c., the goods and chattels, monin that the description is indefinite and eys and properties aforesaid, by some illvague, in that it does not state the char-j disposed person (to the jurors aforesaid acter of the meat alleged to have been yet unknown) then lately before felonistolen.

ously stolen, taken and carried away, "3. The indictment and the informa- feloniously, unjustly, and for the sake of tion vary as to the material alleged to wicked gain, did receive and have, the have been stolen."

said Thomas French then and there well The three counts of the indictment are knowing the goods and chattels, moneys worded as follows: (1) The Grand In- and properties last mentioned, to have quest of the Commonwealth of Penn- | been feloniously stolen, taken and carsylvania, inquiring for the County of ried away, contrary to the form of the York, upon their respective oaths and Act of the General Assembly in such affirmations, do present, that Thomas case made and provided, and against the French, late of the said county, peace and dignity of the Commonwealth yeoman, the twenty-sixth day of of Pennsylvania. March, in the year of our Lord, one It will be noticed that there is nothing thousand nine hundred and twenty-four, in the first count which describes the at the county aforesaid, and within the force alleged against the clefendant, .or:

on

the nature or kind of “premises” alleged them to be used, and in violation of law. to have been entered by the defendant. Rule for judgment entered for defendant. In fact, there is nothing in the descrip- of prizes by lot or chance. It is a scheme by

A lottery is a scheme for the distribution tive part of the count that puts the ac which a result is reached by some action or cused upon his guard to prepare a de- means taken, in which result man's choice or

will has no part, and which human reason, fence or intelligently answer the charge. foresight, sagacity, or design cannot enable The second count describes the goods him to know or determine, until the same has

Any contract intended alleged to have been stolen by defendant to carry such a plan into execution is illegal as “a lot of fresh beef dressed," and the and will not be enforced. third count charges him with having in his possession, having received from cient affidavit of defense.

Rule for judgment for want of a suffi. some person, the stolen property of the prosecutor.

Edw. F. Spitz, New York City, Sidney Nothing in the indictment gives to the 1. W'atts, for plaintiff. defendant sufficient information of the technical charges made against him

1. Garfield Houston, for defendant. which he is to meet and defend against Before Evans and Drew, JJ. at a trial before a jury.

The requirements of an indictment Drew, J., May 10, 1921-This is a rule charging a felony are very clearly de- for judgment for want of a sufficient afscribed in the case of Commonwealth v.

fidavit of defense. Ramsey, I Brewster, 422: 1. "Does the indictment furnish the lof action based on a sale by plaintiff to

The statement of claim alleges a cause defendant with sufficient information of liefendant of 25 phonographs for $50.75 the charge he is to meet, and with the each, a total of $1268.75. The phonoparticulars thereof, so as to enable him graphs were received by defendant and properly to prepare for his defence?"

not paid for, therefore this suit. 2. “Is the record sufficiently precise

The affidavit of defense denies that deto protect the defendant from a second fendant purchased 25 phonographs and prosecution in the event of his acquittal alleges that what it did purchase from or conviction on the first indictment?”

These tests are invariably applied by plaintiff was. “25, phonograph deals or the courts of Pennsylvania in scrutiniz propositions." and then goes on to ex

plain that each deal or proposition coning indictments.

sisted of one phonograph, 2000 steel keys, The indictment now being considered

I steel padlock, 250 advertising circulars does not measure up to that test.

and 5 large display cards, and that the And now, June 23rd, 1924, the rule is advertising circulars and display cards made absolute and the indictment is set forth a plan for disposing of each quashed.

phonograph by a lottery scheme, the steel

keys being used as the tickets, and that C. P. of

Allegheny Co. it was the intention of the plaintiff and

the defendant that the deals were to be Epstein, Etc. v. Houston used by customers of the defendant in

carrying out the plan of the lottery

scheme set forth in the advertising matContracts-Gambling device - Prises ter.

The affidavit of defense also alleges by lot or chance---Choice or skill-Affi- that defendant acted innocently in this davit of defense-Rule for judgment.

matter, that it did not know the phono

graph deals or propositions constituted a A contract for the sale of phonographs to lottery, in violation of the laws of Pennand unenforceable where plaintiff was the sylvania, until its attention was called to principal offender. He knew they were ille- a notice published by the police departgal, and for the consideration he now sues ment of the City of Pittsburgh stating

to recover he placed them on the market, ...knowing they would be used as he intended that schemes similar to plaintiff's phono

graph deal were unlawful lotteries, that ceded purchase price of the 25 phonodefendant then consulted counsel and graphs or phonograph deals, amounting was advised that the phonograph deal to $1,268.75. was unlawful, and thereupon defendant

It must be admitted, because the printgathered in the 25 phonograph deals sold ed matter proves it, that the transactions by defendant to its customer and placed

were for phonograph deals, intended by them in storage.

plaintiff to stimulate and promote busiThe affidavit of defense then says that

ness. It was plaintiff's idea, and he put all transactions between plaintiff and de- it into action, to join together a phonofendant were illegal in violation of the graph as a prize, 2000 keys only one of lottery laws of Pennsylvania, of the which would open the lock furnished by State of Missouri, where plaintiff is en plaintiff to be put upon the phonograph, gaged in business selling phonograph and ample printed matter for display and deals, and of the United States, because advertising purposes to explain the of the use of the mails by plaintiff in scheme to customers, informing them in transacting his business. The defendant, particular that a key would be given free in the affidavit of defense, then denies with each purchase amounting to $2.00 owing plaintiff the amount claimed or and that when all the keys were out the any amount.

customer holding the one which would It is evident that defendant introduced open the lock would be the winner of many facts into the affidavit of defense the $125.00 phonograph. for the purpose of laving a foundation

Since it must be conceded that defor the introduction of testimony at the fendant was not buying phonographs, trial to explain and support the defend-only phonograph deals, which certainly ant's denials of the facts set forth in meant the whole outfit, it follows that plaintiff's statement. Defendant could plaintiff and defendant made their connot well have done otherwise and at the tracts for the deals to be used as desame time make a legal defense to plain-scribed in the printed matter, and in no tiff's claim. Defendant did order and other way. This is not a case of the purreceive the phonograph deals at anchase of merchandise which could be agreed price, and therefore had to offer used for gambling purposes and also for a legal reason for refusal to pay for other purposes, perfectly legal in the them.

eves of the law, such as playing cards, At the argument and in his brief coun-billiard tables and the like. This case is sel for plaintiff fairly met the denials and one in which the parties knew the use to allegations contained in the affidavit of which the deals were to be put, and it defense by "accepting defendant's state was on plaintiff's offer that they could ments in toto, as to the content of the be so used, and would thus promote busitransaction, of a phonograph deal or pro- ness, that defendant acted. As it apposition, consisting of one No. 5 phono-pears to us it makes no difference that graph, 1 steel padlock, 2000 keys and di- the deals were not intended for direct vers printed matter," (brief of plaintiff's use by defendant. The object was to counsel page 3), and denying that same have defendant, as a jobber, sell them at constituted a lottery or any illegal trans- a profit to its customers, to be used by action.

them in their retail trade. If the device Plaintiff has also waived its claim for or scheme was illegal it was so from the $5.91, advanced freight payment on de- beginning. fendant's account, because of the denial

The question is, did the phonograph of defendant that such payment was nec-deal constitute a lottery? A lottery is a essarily paid for its account, and express-scheme for the distribution of prizes by ed a willingness to have the matter omit- lot or chance. It is a scheme by which ted from consideration on this applica-l a result is reached by some action or tion, and if necessary that it be stricken means taken, in which result man's from the statement of claim. This suit, choice or will has no part, and which therefore, is one to recover only the con-human reason, foresight, sagacity, or de

are of

sign cannot enable him to know or de- conveyance or transfer of any goods or termine, until the same has been accom- chattels, lands, tenements or hereditaplished. A scheme for increasing the ments, which shall be made in pursuance circulation of a newspaper, whereby all of any such lottery, is hereby declared to subscribers receive numbered tickets cor- be invalid and void.” responding to numbered coupons, which In conclusion, therefore, we are drawn from a box by a blindfolded opinion that the phonograph deals were person, prizes to be given to the holders illegal, the contracts for their sale null of certain tickets, is a lottery under U. S. and void, because the deals constitute a Revised Statutes Sec. 3894, prohibiting lottery, in violation of Section 52 of the carrying through the mails of any news. Act of 1860 (supra). In making and sellpaper containing any advertisement of ing and advertising the deals the plaintiff any lottery, etc. (58 Fed. Rep., 942). A was the principal offender. He knew plan where every purchaser of dry goods they were illegal, and for the considerareceived a key and was told that one key lion he now sues to recover he placed would be given out which would unlock them on the market, knowing they would a certain box containing Twenty-five be used as he intended them to be used, Dollars, which would go to the person and in violation of law. Because the who received the key that opened the contracts sued on relate to a gambling box, is a lottery. (Davenport v. City of enterprise to which both plaintiff and deOttawa, 54 Kan., 711). On the other fendant were parties, they cannot be enhand, where the scheme affords room for forced. the exercise of skill and judgment it is And now, May 10, 1924, after argunot a lottery:

ments of counsel and full consideration, Applying these few definitions and il- the rule heretofore granted to show cause lustrations to the instant case, can there why judgment should not be entered for be any question as to what our answer plaintiff for want of a sufficient affidamust be? There is no room for the ex

vit of defense is discharged, and judgercise of skill and judgment to win one ment is now entered on the whole record of the phonographs. It certainly is the in favor of the defendant. distribution of prizes by chance, by a scheme in which man's choice or will has

O. C. of

Lehigh Co. no place. It is a lottery beyond a doubt. Main v. Mackey, 39 Pa. Co. Ct., 589.

Huber's Estate The phonograph deals were intended for gambling purposes, and in marketing them as such, making and advertising the Auditors--Fee-Acts of June 4, 1879, plan for their use, the plaintiff actively and purposely participated in such use, and June 7, 1917. He knew they were bought for, and The Act of June 4, 1879, P. L. 84, has been would be used for, an illegal purpose, repealed by the Act of June 7, 1917, P. L. and he aided materially in carrying out | 147 and there is no longer a per diem basis

for allowance of auditor's fees. that purpose.

Under the circumstances Auditors are entitled to fair and reasonable the sale of each eal was per se a viola- compensation, and no more. tion of law because the unlawful pur Exceptions to auditor's report. pose entered into and formed a part of the contract of sale.

H. W'. Helfrich, for exceptions. Section 52, of the Act of March 31, Reno, P. J., Feb. 4, 1924.—The bal1860. P. L. 306, declares as follows: ance for distribution aggregates $5477.23. “All lotteries, whether public or private, The auditor appointed to make distribufor moneys, goods, wares or merchan- tion held one meeting, took six pages of dise, chattels, lands, tenements, heredita- typewritten testimony and filed a report ments, or other matters or things whatso- of seven typewritten pages. ever, are hereby declared to be common question of law requiring his determinanuisances; and every grant, bargain, sale, tion was comparatively simple, necessi

The one

murrer.

tating inspection of few authorities and the limitation is statutory, but also to cases the construction of only one act. To his in which the limitation is fixed by contract

between the parties. fee of $400 exceptions have been filed. Manifestly, the fee is excessive. The

Statutory demurrer to the plaintiff's Act of June 4, 1879, § 1, P. L. 84, has statement in Harry Weinstock v. Pennbeen repealed by the Act of June 7, 1917, sylvania Railroad Company, No. 87, Au$ 03, P. L. 447, and there is no longer a gust Term, 1919, in the Court of Comper diem basis for allowance of auditors' mon Pleas of York Co., Pa. Demurrer fees. This repeal does not deprive us of overruled. a standard whereby the value of audi Cochran, I’illiams & Kain, for detors' services can be measured. We now resort to the law as it was prior to 1879, when it was declared that auditors are V. K. Keesey, contra. entitled to fair and reasonable compensation for the labors required of them, and

Wanner, P. J., October 6th, 1924.--no more: Porter's Appeals, 30 Pa. 496;

The contention of the defendant is that Parker's Appeal, 61 Pa. 478; and, na- the plaintiff's action is barred by a clause turally, the ability of the estate to pay

in the contract in suit, which fixes two furnishes no criterion for fixing the com

years and a day after the cause of action

has accrued as the time within which pensation: Parker's Appeal, 61 Pa. 478.

Careful consideration of the whole suit may be brought upon a breach of the case convinces us that a fee of $100

contract. would be a liberal allowance, and, ac

The plaintiff concedes that this suit cordingly, that sum will be allowed: Cf. was not brought within the time speciBracken's Estate, 138 Pa. 104.

fied in the contract, but alleges that he Now, Feb. 4, 1924, exception sustain- was in the military service of the United ed; a fee of $100 is allowed to the audi- States from July 24th, 1918 to January tor; counsel for accountant may present 27th, 1919, which period of service must a decree of distribution in accordance be excluded from the calculation of the herewith for confirmation.

time elapsing between the accruing of the cause of action and the bringing of

this suit, under the following provision C. P. of

York Co. of the Soldiers' and Sailors' Civil Relief Weinstock v. Pennsylvania

Act of March 8, 1918, U. S. Compiled

Statutes, page 417, Sections 3078: a to Railroad Co.

3078:SS: "The period of military service shall not be included in computing any

period now or hereafter to be limited by Construction of statutes-U. S. Sol- any law for the bringing of any actions

by or against any person in military serdiers' and Sailors' Relief Act of March vice * Whether such cause of 8, 1918-Limitation by contract of time action shall have accrued prior to or dur

ing the period of such service.” in which to bring action is effected by This Act has been held to be constituSoldiers' and Sailors' Relief Act.

tional and applicable to cases like this in

the state courts: Bell v. Baker, 260 S. W. The preamble of a statute should be con: 1158; Erickson v. Macey, 131 N. E. 744, sidered in ascertaining the legislative intent in passing it, and when that is determined vide cases cited in annotations to this the act should be liberally construed and ap- case in 16 A. L. R 1322-1327; Hoffman plied so as to render it effective.

v. Charlestown Savings Bank, 181 N. E. The Act of Congress of March 8, 1918, known as the Soldiers' and Sailors' Civil Re- | 15. lief Act, which provides that the period of

The plaintiff's cause of action having military service shall not be included in computing the period limited by law for the accrued May 17th, 1917, and the suit bringing of actions by or against persons in having been brought June 28th, 1919, the the military service, is constitutional, and is exclusion of the plaintiff's period of applicable to cases in state courts.

This act applies not only to cases in which I military service from the calculation of

*

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