Opinion
March 18, 1936.
1. HABEAS CORPUS. Habeas Corpus cannot be used to perform the functions of a writ of error or of an appeal.
2. HABEAS CORPUS: Constitutional Law. If a person is imprisoned for an act which is not in contravention of an existing law, or if the act under which he is held is unconstitutional, habeas corpus is a proper remedy to restore him to his freedom.
The statement that unless there is an "existing law" condemning the act, habeas corpus is a proper remedy, must be taken with reference to the facts in the case.
3. HABEAS CORPUS: "Bank Night." Where a petitioner was arrested on a warrant issued by a justice of the peace, charging him with establishing a lottery known as "bank night" in violation of Section 4314, Revised Statutes 1929, where neither the constitutionality of the statute, the sufficiency of the complaint, nor the sufficiency of the process was challenged in his writ of habeas corpus, the Supreme Court could not order his release.
In such case the question of the violation of the statute was for determination and the justice of the peace was authorized to determine the question of "probable cause."
WRIT QUASHED.
Fred Bellemere, John J. Nangle, Harry S. Rooks and Martin Barrow for petitioner; S.P. Halpern of counsel.
(1) The advertising practice called "bank night" is not a lottery or violation of the statute, because no consideration is paid or promised to be paid in order to participate, which is a necessary element to constitute a lottery or offense under the statute, Section 4314. State ex rel. v. Hughes, 229 Mo. 529, 253 S.W. 229; State v. Emerson, 318 Mo. 633, 1 S.W.2d 109; State of Iowa v. Hundling, 264 N.W. 608; People v. Cardas, 28 P.2d 99; Cross v. People, 13 Colo. 321, 32 P. 821; Post Publishing Co. v. Murray, 230 F. 773; Williams Furniture Co. v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579; Yellowstone Kit. v. Alabama, 88 Ala. 196; Holt v. Rural Weekly Co., 217 N.W. 345; People v. Mail Express Co., 179 N.Y.S. 640. (2) To constitute a lottery either at common law or under the statute three elements are necessary, namely: (a) a prize; (b) determination of the winner of the prize by chance, and (c) payment of a consideration by the participant. State ex rel. v. Hughes, 229 Mo. 529, 253 S.W. 229; State v. Emerson, 318 Mo. 633, 1 S.W.2d 109; Chancy Park Land Co. v. Hart, 104 Iowa 592, 73 N.W. 1059; Featherstone v. Ind. Serv. Sta. Assn., 10 S.W.2d 124; Brooklyn Daily Eagle v. Voorhies, 181 F. 579; State v. Clark, 33 N.H. 329; Authorities under Point (1). (3) Since petitioner is charged with a felony created by the statute, it must be strictly construed and not enlarged by implication. State v. Holder, 72 S.W.2d 489.
Roy McKittrick, Attorney General, and Franklin E. Reagan, Assistant Attorney General, for respondent.
"Bank Night" is a lottery because it awards by lot a prize for a "consideration." Society Theatre v. Seattle, 203 P. 21; Central States Theatre Corp. v. Patz, 11 F. Supp. 566; State v. Danz, 250 P. 37. The term "consideration" means either a benefit to the promisor, or a detriment, loss of time, inconvenience or trouble to the promisee. State v. St. Louis Union Trust Co., 74 S.W.2d 348; Thomas on Non-Mailable Matter, sec. 16; Union Gas Oil Co. v. Wiedemann Oil Co., 277 S.W. 330; McNulty v. Kansas City, 198 S.W. 185; Mayfield v. Eubank, 278 S.W. 246; Mayers v. Groves Brothers Co., 22 S.W.2d 177. "Consideration" may be labor performed. Loveland v. Bode, 214 Ill. App. 399. The presence of the public at the theatre is sufficient consideration. Maughs v. Porter, 161 S.E. 242.
F.E. Williams, amicus curiae.
(1) The few lotteries that were chartered in Missouri in the early days were nonprofit enterprises. 1 Territorial Laws 1817, chap. 186, p. 497, chap. 193, p. 511, chap. 200, p. 522; 2 Laws 1833, p. 374, chap. 255, p. 328. (2) The reaction against lotteries, which began in 1842, is reflected in the Constitution and existing legislation. Laws 1842-3, p. 85; Const. 1865, Art. IV, Sec. 28; Const. 1875, Art. XIV, Sec. 10; R.S. 1929. secs. 4314, 4315. (3) In this State, under our Constitution, statutes and decisions, it is established beyond question that the term "lottery" includes "every scheme or device whereby anything of value is for a consideration allotted by chance." Const. 1875, Art. XIV, Sec. 10; R.S. 1929, sec. 4314; State v. Emerson, 1 S.W.2d 111; State ex rel. v. Hughes, 299 Mo. 529, 253 S.W. 229, 28 A.L.R. 1305; State v. Becker, 248 Mo. 555, 154 S.W. 769. (4) Where a lottery scheme is used in advertising or promoting a business, the distribution of chances for a prize to nonpatrons as well as patrons does not save the scheme from being a lottery. Glover v. Malloska, 238 Mich. 216, 213 N.W. 107; Society v. Seattle, 203 P. 21, 118 Wn. 258; Featherstone v. Service Assn, 10 S.W.2d 127; Willis v. Young, 1 K.B. 448.
Habeas corpus. The sheriff of Madison County, in writing and upon oath, made a complaint to a justice of the peace of said county in which he charged that, in said county, petitioner established a lottery known as "bank night," and that he also aided and assisted in establishing a lottery in said county. On a warrant issued by the justice, the sheriff arrested petitioner and holds him in custody to answer said complaint. Petitioner seeks to be discharged from custody on the ground that the advertising practice called "bank night" is not a lottery and for that reason is not a violation of Section 4314, Revised Statutes 1929. The writ of habeas corpus prevented the justice from proceeding with the cause.
Petitioner neither challenges the jurisdiction of the justice of the peace, the constitutionality of the statute, the sufficiency of the complaint, nor the sufficiency of the process. It is elementary that habeas corpus cannot be used to perform the functions of a writ of error or an appeal. However, in Ex parte Joseph Neet, 157 Mo. 527, l.c. 537, 57 S.W. 1025, we said:
"The rule must now be regarded as settled in this State that if a person is imprisoned for an act which is not in contravention of any existing law, or if the act under which he is held is unconstitutional, habeas corpus is a proper remedy to restore to him his freedom of which he has been improperly and illegally deprived. [Ex parte Slater, 72 Mo. 102; Ex parte Arnold, 128 Mo. 256; Ex parte O'Brien, 127 Mo. 477; Ex parte Craig, 130 Mo. 590; Ex parte Smith, 135 Mo. 223.]"
In the cases cited in support of the statement, the trial court was either without jurisdiction, exceeded its jurisdiction, or the statute was unconstitutional.
In said case petitioner was convicted on a charge of playing baseball on Sunday. Before the trial this court had ruled that there was no law in this State which prohibited a person from playing said game on Sunday. [St. L. Agrl. Mech. Assn. v. Delano, 108 Mo. 217, 18 S.W. 1101.] In the face of this ruling the trial court exceeded its jurisdiction. Furthermore, Neet was without an adequate remedy by appeal. He was convicted on information filed by the prosecuting attorney, and at that time the statute only authorized an appeal on a charge by indictment. [State v. Brown, 153 Mo. 578, 55 S.W. 76.]
Of course, the statement that unless there is an "existing law" condemning the act, habeas corpus is a proper remedy, must be taken with reference to the facts of said case. In other words, the question of whether or not there was an "existing law" prohibiting baseball on Sunday had been finally ruled at the time Neet was prosecuted.
In the instant case the question of the violation of the statute is open for determination. Thus it appears that on habeas corpus this court is without authority to determine the question. It follows that the justice of the peace is authorized to determine the questions of "probable cause."
The question under consideration has been ruled in Horner v. United States, 143 U.S. 570, 36 L.Ed. 266, 12 Sup. Ct. 520. In that case the petitioner had been committed to await the action of the grand jury on complaint that he had violated a Federal statute prohibiting the sending by mail of circulars concerning lotteries. On his petition the United States Circuit Court issued a writ of habeas corpus which was dismissed by that court. He appealed to the United States Supreme Court and contended that the circular was not covered by the statute. The case was ruled by said court as follows:
"But we are of the opinion that that question ought not to be reviewed by us on this appeal. The point raised is that the Austrian bond scheme is not a lottery. That is a question properly triable by the court in which an indictment may be found against Horner. He is now held to await the action of a grand jury. His case is in the regular course of criminal adjudication. It is not proper for this court, on this appeal, nor was it proper for the circuit court, on the writ of habeas corpus, to determine the question as to whether the scheme was a lottery. . . . The commissioner had jurisdiction of the subject matter involved, and of the person of Horner, and the grand jury would have like jurisdiction. . . . The case presents for the determination of the court in which the indictment may be found the question as to whether the scheme was a lottery, and it is not for any court to determine it in advance, on habeas corpus. If an inferior court or magistrate of the United States has jurisdiction, a superior court of the United States will not interfere by habeas corpus."
On the record the petitioner should be remanded to the custody of the sheriff of Madison County, and the writ should be quashed. It is so ordered. All concur.