(dissenting.) — =1 have not been able to bring myself to concur with the majority of the court, in the judgment pronounced in this case, nor in the reasoning by which it is supported.
*41The indictment contains three counts. They are as follows :
1. “The grand jury of said county charge, that before the finding of this indictment, Marion Marks set up, or was concerned in setting up or carrying on, a lottery without the legislative authority of this State, against the peace and dignity of the State of Alabama.”
2. “And the grand jury of said county further charge, that before the finding of this indictment, Marion Marks, on the 16th day of October, 1869, sold, or was interested or concerned in selling, tickets or shares in a lottery not authorized by the legislative authority of this State, against the peace and dignity of the State of Alabama.”
3. “ And the grand jury of said county further charge, that before the finding of this indictment, Marion Marks set up, or was concerned in setting up or carrying on a lottery without the legislative authority of the State of Alabama, or sold, or was interested or concerned in selling lottery tickets or shares in a lottery not authorized by the legislative authority of the State of Alabama, against the peace and dignity of the State of Alabama.”
On this indictment the defendant, said Marks, was convicted of “ the misdemeanor of setting up or carrying on a lottery without the legislative authority of this State,” and fined one hundred dollars and costs.
On the trial in the court below, the evidence for the prosecution tended to show that the defendant, Marks, was the acting and superintending clerk in the principal office of the Tuskaloosa Scientific and Art Association in the city of Mobile in this State; that the witness had bought several tickets in the drawings of said association, but had never bought any from the defendant, said Marks, or seen him sell any tickets. The witness further showed that he had “ won a prize or prizes, and on demand that he was paid the amount in money, without any other formality or ceremony.” It was not shown that the defendant had any connection with paying the prizes thus drawn, or even knew that they were paid, or that they had been drawn under his superintendence. On the part of the said defendant, *42the act incorporating said association was given in evi" dence; and also a copy of the rules and regulations for conducting the business of said association were given in evidence by said defendant. And there was evidence tending to show that the business of the association was conducted according to the act incorporating the same and in conformity with said rules and regulations aforesaid.
On this testimony the court, among other things, charged the jury, that “ the act under which the defendant seeks to protect himself does not authorize a lottery in this State, in the sense in which the term lottery is employed in section 3616 of the Revised Code of this State. If you should believe from the evidence that the defendant was engaged in a lottery, or that he sold a ticket which drew a prize, and without any other act on the part of the defendant, except that when the ticket was presented he paid it in money, — in this case he would not be protected by the act under which he seeks protection.” This was the act of February 3, 1866, incorporating the association abovesaid.
This charge is obviously wrong, in whatever light it may be viewed. At the present term, it has been decided by this court, that “ the Tuskaloosa Scientific and Art Association” may set up and carry on a lottery for the purposes mentioned in the act of its incorporation. — Broadbent v. Tuskaloosa Scientific and Art Association, at January term, 1871. And it seems to me scarcely possible to avoid this conclusion on reading the act itself. — Pamph. Acts, 1865-66, p. k69, Act No. 190, §§ 6, 7. The statute directs that “ the articles to be distributed or awarded may consist of books, paintings, statues, antiques, scientific instruments or apparatus, or any other property or thing that may be ornamental, valuable or useful.” — lb. § 7. It would certainly be an unusual construction of this language to contend that it did not include a purse of gold or silver dollars, or a bundle of legal tender treasury-notes of the United States. The specifications in the act, instead of restraining the corporation to the things specially named in the enumeration, goes on to open the list for “ anything that may be ornamental, valuable or useful.” Yet the charge of the court above recited has added to this enum*43eration the words “ except money.” Upon a special issue, if it were attempted to prove the language of the act above cited, which is as the general assembly enacted it, could it be possible that the proof would not be complete without the proof also of the words implied by the charge of the court — that is, “ except money.” Such an addition to the language of the act is prejudicial to the defendant, and it seems to me but little short of judicial legislation. Chief-Justice Marshall said, in one of his masterly opinions, that not to enforce the constitution was judicial “ treason.” Is it not equally judicial treason to disregard it, by judicial legislation, under pretense of construction ? — Cohens v. Virginia, 6 Wheat. 404, 264. If the lottery was authorized hy law, and it was properly drawn, — and these are facts not disputed — how could it render a party guilty, that had paid the award in money, instead of paying it in some “ thing-that may be ornamental, valuable or useful ?” It would be mere tautology to insist that the “ things ornamental, valuable or useful,” named in the statute, meant only such as were of the several classes mentioned by name. This puts the guilt upon the manner of the payment of the award, and not on the setting up or carrying on the lottery. The payment of the award is not a misdemeanor, or an offense, under section 3616 of the Revised Code, as the learned judge in the court below instructed the jury. The charge Was, therefore, erroneous, and the conviction was improper and ought to be reversed.