DISSENTING OPINION. The record reveals that appellant was doing what the indictment charged, and what the statute prohibited. It was entirely consistent with a finding of guilt, and the jury so found. Appellant is being excused because the state did not negative what it was under no duty to disprove. Despite proof sufficient to make a prima facie case of guilt, he is exonerated by our having imported into the record for his benefit those speculative possibilities which we have so often condemned as insufficient and irrelevant grounds for conviction.
Let it be supposed that appellant is, in fact, the original genius of the enterprise. He could well be, and for all that is shown to the contrary he is entitled to complete credit for its activation. Nevertheless, he would be acquitted of his responsibility, contrary to the demands of justice, because of the possibility that the accusing appearances might be contrary to a fact which the defendant alone knew. The jury have a right to convict on circumstantial evidence, even as the defendant has the *Page 102 duty to rebut a prima facie case. Here the complete control of the paraphernalia and of the agents employed is sufficient to show that he inaugurated the project. His possession of the several devices and of the funds for distribution is presumptive evidence of his ownership.
If the writer of the opinion had the power and propensity to set up such a scheme and to conduct it as did appellant, he would be unquestionably guilty. Yet it could be undertaken with the judicial assurance that, despite his complete independence in conception and execution, there would be indulged in his favor a presumption that he was acting at the suggestion and instigation of a superior. And so this rampant view once loosed to serve such operator would run to the aid of his superior and defend him with the same assumption of a subordinate role. This interesting scene would be re-enacted successively as the ingenuity and industry of detection proceeded anew to the man yet higher up. Only the man highest up whose pride of invention forbade the concession of a superior mind, would be guilty.
It does not matter why the appellant put in operation the lottery, nor whether the idea was original with him or that he is beholden to some superior inventive genius. If he performed all the acts which an independent and original scheme required, he is at least prima facie guilty as a principal or an accessory.
The majority opinion states that he was in charge of the lottery. Each day he set in operation with instrumentalities in his possession and through agents under his control, a complete lottery. He paid off the winners with funds which he possessed and which presumptively were his own. It is true the appellant could be convicted for the constituent offenses, even as one charged with murder could be convicted of assault and battery, or pointing or carrying a pistol. On the other hand, his pickup men, had they distributed the tickets, drawn the lottery, and paid the winners should be convicted for putting up the *Page 103 lottery. It is not here relevant that, by their proof of an agency, they could be found guilty of a lesser charge.
The circumstances shown, being consistent with guilt, placed a procedural burden on the accused. He is being excused by a reasoning which would acquit a murderer upon the speculative possibility that a third party, by nudging his elbow, had caused an accidental discharge. Such defense, of course, would be good, if true. But it is to be supplied not by the theory of the court, but the testimony of the defendant.
The opinion of the Court states: "For all that the proof shows the lottery may have been in operation somewhere within the same vicinity for some time before appellant ever had any connection with it whatever." That is, of course, a possibility. Yet, for all the appellant showed, he may have been its inventor. More to the point, as far as the proof does show, he was.
It is not believed, deferentially, that illustrations drawn from the saloon or mercantile business are apt. The scheme here was not a tangible thing like a counter or a table which could be set up. It was an idea. It was to be activated by conduct. It could not be set up as goods or equipment. The Court has borrowed the wisdom of Commonwealth v. Burns, 4 J.J. Marsh., Ky., 177, decided a hundred and fifteen years ago. An ancient statute was there being construed which prohibited the "setting up" of a gaming table. The court, while conceding that to "set up" and to "keep" a gaming table were for all practical purposes synonymous, stated: "It must be construed as a penal statute." It seems to be disregarded that the statute here involved is to be given a liberal construction. Code 1942, sec. 2202. In the Kentucky case it is interesting to notice that the court defined "setting up" a gaming table as meaning "to provide whatever may be necessary for the game, and either by acts or words, to propose to play it." Such is the situation in the instant case. A further test was whether there was a "banker" or one who paid off the winners, as distinct *Page 104 from one who manually installed the devices or merely managed the playing. But, here, the appellant performed all these functions. In the Burns case there were two persons in charge of the gaming, one who dealt the cards and the other, Burns, who harvested the winnings. That court was confronted with the difficulty of distinguishing between one who manually "set up" a gaming table and one who "kept" it, and its labored distinction could have been foregone if, as here, there was only one head and the person who set the scheme in operation each day furnished all the equipment and paid winners from his own purse.
The difficulty of interpreting the phrase "put up a lottery" is less than that of getting more apt words to describe the establishment of the scheme. Whatever word is selected is aimed at the one about whom the project revolves. He who activates the idea or carries it out for his own benefit puts it up. In a literal sense he puts up the money and the tickets. We should not be at pains to construe him out of jail with mere assumptions, nor give to his accusing silence an exculpatory voice.
Appellant was the hub of a wheel in which his several agents were the spokes. In its rim were the prospective victims of the scheme. It was not a wheel within a wheel. Its completeness in structure and operation lacked nothing. He could, therefore, in fact be guilty. It was for the jury to say. He could possibly have been innocent of that which the facts and the appearances accused him. It was for him to explain.
To the practical difficulties of uprooting a nefarious practice we have added technical obstacles and have compelled the state both to prove guilt and to disprove a defense which the defendant does not assert.
Smith, C.J., concurs in this opinion. *Page 105