Eslava v. State

PETERS, J.

The indictment in this case is in the following words:

“ State of Alabama, ) City Court of Mobile, Mobile county. f February term, 1870.

“The grand jury of said county charge, that before the finding of this indictment, J. Eslava bet at a gaming table for gaming, or at a game called keno, “ against the peace and dignity of the State of Alabama.”

The defendant, Eslava, went to trial on this charge upon a plea of not guilty, and was found guilty by the jury, and fined fifty dollars, and taxed with the costs. From this conviction he appeals to this court.

The proofs show that, beyond all doubt, the appellant bet at a game called keno, within the twelve months next before the finding of the indictment.

This is not denied; but it is insisted that this game is licensed as a lottery by the State, and because of this license the accused can not be punished; in effect, that the license repeals the law forbidding the betting on this game. — The State v. Allaire, 13 Ala. 435, 436.

But is keno a licensed game ? Certainly not. It is forbidden by the statute and it is an offense to bet at it. — Rev. Code, §§ 3616, 3622, 3623.

Notwithstanding this, it is contended that it is within the description of lottery under the act “ to regulate lotteries.” Pamph. Acts 1868, p. 529, Act No. 185, § 10.

Should this be admitted, it does not help the appellant’s case. The lotteries referred to in this act are only such lotteries as “ are noto authorized, or may hereafter be authorized by law in this State.” — Pamph. Acts 1868, p. 529, Act No. 185, §§ 1, 2, 6, 11. The legislature is the only power that can give such authority. It requires a law to authorize a lottery, and the general assembly alone can make this law. — Const, of Ala. 1867, arts. 8, 4. The honorable commissioner of lotteries can only take charge of such lotteries, “ associations, companies, societies, gift enterprises, and other enterprises in the nature of lotteries,” as have been or shall be hereafter authorized by law, and see that they observe the requisitions of the statute for their regulation. He has no power to authorize a lottery by his license, or to turn the game called “ keno” into a lottery, or into an “ enterprise in the nature of a lottery,” His license, then, as a matter of defense in this case, avails nothing. It was issued without authority of law, and. is worthless for any purpose whatever. The evidence tending to establish its existence was, then, properly excluded from the jury; and without this the accused showed no matter of defense in the court below. Eor this reason the ruling and the charge of the court below, which are alleged as error, were correct.

The conviction in the city court is therefore affirmed, with costs. The defendant will be discharged upon complying with the judgment of the city court, else retained in custody until discharged by due course of law.