Holoman v. State.

Holoman, late of the county of Hunt, on the 8th day of December, A. D. one thousand eight hundred and seventy-six, with force and arms, in the county of Hunt and State of Texas, did then and there, under the pretense of selling and vending a certain article of merchantable personal property called candy, establish a lottery, which lottery was then and there set on foot for the purpose of unlawfully disposing of personal property, to wit, money, rings, and other articles of jewelry, by chance, by then and there exposing to sale divers candy-boxes, at fifty cents each, which boxes were then and there represented by said H. A. Holoman to contain candy and prizes, one of said lot, not specified, being then and there represented by said Holoman to contain ten dollars, and others of said boxes being then and there represented by said Holoman as containing five dollars each. That said H. A. Holoman did then and there dispose of, by said lottery, to one Charley Thayer, ten dollars, same being personal property, and did then and there dispose of, by said lottery, to divers other persons, certain personal property, to wit, certain pieces of money, rings, and other articles of jewelry, of value unknown to the said county attorney, contrary to the form of the statute," etc.

The information was drawn under article 2039, Paschal's Digest, which is as follows: "If any person shall establish a lottery, or dispose of any estate, real or personal, by lottery, he shall be fined not less than one hundred dollars nor more than one thousand dolMr. Webster, in his unabridged dictionary, defines a lottery to be "a scheme for the distribution of prizes by chance, or the distribution itself."

The State proved all the allegations made in the information. The proof in this case shows the sale of candy, with sale of the chance for a prize, and that one of the witnesses purchased the candy in a box for 50 cents, and drew $10 in money; that the defendant represented that each box contained a prize of some sort

some money and some jewelry; that one contained $10, and two $5; that the inducement offered by Holoman to those present, to get them to purchase the boxes, was the money or other prizes which he represented the boxes to contain; that there were $60 on the board. He sold the boxes in this manner: The party purchasing would pay Holoman 50 cents, and take a stick, which defendant had for that purpose, and point out the box which he wanted, and the box pointed out by the purchaser was handed to him by

Holoman v. State.

defendant. The witness, Charley Thayer, says he bought a box which contained candy and $10.

The policy of the State upon this subject is clearly shown by the Constitution. See Const. of 1876, art. 3, § 47.

The manner of disposing of the boxes of candy, with a chance to get $10 or some less prize, as the evidence shows was done in this instance, is but an attempted evasion involving the lottery principle. The subterfuge resorted to by the plan of operations cannot avail the accused as a defense to the prosecution.

This question is thoroughly and fully discussed, and the authorities cited, in the case of Randle v. The State, 42 Tex. 580, and we consider that it is only necessary to cite that case and say that we fully concur in the opinion of our Supreme Court rendered therein. We find no error in the record that would authorize a reversal of the judgment. The judgment is affirmed.

Judgment affirmed.

NOTE BY THE REPORTER.— All "gift enterprizes are lotteries. State v. Clarke, 33 N. H. 329; State v. Shorts, 3 Vroom, 398; Bell v. State, 5 Sneed, 507; U. S. v. Olney, 1 Abb. (U. 8.) 275; Commonwealth v. Chubb, 5 Rand. 715; Commonwealth v. Thacher, 97 Mass. 583; Dunn v. People, 40 Ill. 465. Even if there are no blanks, Wooden v. Shotwell, 3 Zabr 465. Thus a gift sale of books at prices above their value, the purchaser being also entitled to a prize indicated by figures in the books corresponding to the numbers of the prizes, unknown to the purchaser. State v. Clarke, supra. So, a sale of envelopes, some of which contained tickets entitling the holder to purchase valuable property at a nominal price. Dunn v. People, 40 Ill. 465. So as to a drawing of works of art. The Art Union Cases, 7 N. Y. 228, 240. In the latter case, the distribution being made by lot conducted among themselves, it was held that while the scheme rendered the society liable to a penal forfeiture to the plaintiffs as is provided by statute, yet they were not liable to criminal proceedings by way of indictment. Playing policy" is unlawful, and the purchaser of numbers may recover double the sum paid. Grover v. Morris, 73 N. Y. 473; Wilkinson v. Gill, 74 id. 63.

VOL. XXVIII-56

CASES

IN THE

COURT OF APPEALS

MARYLAND.

PHILADELPHIA, WILMINGTON & BALTIMORE R. R. Co. V. LARKIN.

(47 Md. 155.)

Damages-exemplary — wrongful expulsion of passenger from car.

In an action by a passenger against a railroad company for expulsion from its

car,

the court charged that if the jury found that he was treated with unnecessary and reckless violence and indignity, and that the defendant's servants acted in a wanton, high-handed and outrageous manner, the jury might award exemplary or punitive damages, even though the plaintiff might in the first instance have rendered himself liable to expulsion on account of his disorderly conduct. Held, no error.*

A

CTION for damages for wrongful expulsion from defendants' car. The opinion sufficiently states the facts.

Thomas Donaldson, for appellant.

Jas. A. L. McClure and Lewis H. Powell, for appellee.

*To same effect see Atlantic and Great Western Ry. Co. v. Dunn (19 Ohio St. 162), 3 Am. Rep. 382; Palmer v. Railroad (3S. C. 580), 16 Am. Rep. 750; Doss v. Missouri, etc., R. R. Co. (59 Mo. 27), 21 Am. Rep. 371; Hanson v. European, etc., Ry. Co. (62 Me. 84), 16 Am. Rep. 404; Goddard v. Grand Trunk Ry. Co. (57 Me. 202), 2 Am. Rep. 39. The same implied in Pullman Palace Car Co. v. Reed (75 Ill. 125), 20 Am. Rep. 232; Croaker v. Chicago and Northwestern Rụ. Co. (36 Wis. 657), 17 Am. Rep. 504. In Cleghhorn v. N. Y. & H. R. R. Co. (56 N. Y. 44), 15 Am. Rep. 375, it was held that to render the master liable to punitive damages it must appear that in some way he ratified the act.

Philadelphia, Wilmington & Baltimore R. R. Co. v. Larkin.

MILLER, J. This action was brought by the appellec, who was a passenger on the appellant's cars, to recover damages for having been expelled therefrom by the conductor, and other employees of the company. There is a direct conflict in the testimony as to the cause of the expulsion, the circumstances attending, and the degree of violence used in accomplishing it. It was for the jury to decide that question and they have done so. Our duty is confined to a review of the rulings of the court below upon the law of the case, to which exception was taken by the defendant. All the prayers offered on both sides (four on the part of the plaintiff and three on the part of the defendant) were granted. Those on the part of defendant are not before us, inasmuch as the verdict and judgment were in favor of the plaintiff, and he has taken no exception to the granting of these instructions. The sole inquiry therefore is, was there error in granting the plaintiff's prayers, or either of them?

In reviewing these prayers one of the questions presented is, were the jury rightly instructed upon the subject of exemplary damages? That the jury may be allowed to give exemplary or punitive damages against a railroad company in an action like this, if the circumstances of the case warrant it, is no longer an open question in this State. It was so held in the case of the President of the Balt. & Yorktown Turnpike Road v. Boone, decided by this court at its April term, 1876. There the action was to recover damages for an expulsion from the defendant's horse-cars, and by the plaintiff's second prayer, which the court granted in that case, the jury were instructed that if they found for the plaintiff under his first instruction, "they should award him such sum as damages as will compensate him for the injury to his person, feelings and character, arising from the unlawful act of the defendant, and if they believe the said unlawful act was deliberately and forcibly done, then they may give such exemplary damages as they may consider a proper punishment for the conduct of the defendant acting through its agent, the conductor." In this instruction there is a plain statement of what constitutes damages by way of compensation, and in reference to that part of the instruction, this court said it "presents a sound and unquestionable proposition." As to the latter branch of it relating to exemplary damages, we said the question "is not entirely free from difficulty," but affirmed it upon the authority of the Supreme Court in Quigley's case, 21 How.

Philadelphia, Wilmington & Baltimore R. R. Co. v. Larkin.

214, where it is said "whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person." This doctrine has also very recently been approved by the Supreme Court in a collision case. Milwaukee & St. Paul Railway Co. v. Arms, 1 Otto, 493; where after reference to the case of Day v. Woodworth, 13 How. 371, where the rule of exemplary damages was discussed and recognized, and after quoting the language of Mr. Justice CAMPBELL, in Quigley's case, 21 How. 213, 214, the court say: "Although this rule was announced in an action for libel, it is equally applicable to suits for personal injuries received through the negligence of others. Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant and its consequences to the plaintiff; but they are not at liberty to go further, unless it was done willfully, or was the result of that reckless indifference to the rights of others, which is equivalent to an intentional violation of them. In that case the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages." This seems to us to place the law on this subject upon safe and satisfactory grounds, and in view of these authorities there was clearly no error in granting the plaintiff's third prayer, to the effect that "if the jury find for the plaintiff, then they should award him such damages as will, under all the circumstances of the case, compensate him for the injury to his person and feelings, suffered by reason of the unlawful acts of the defendant; and if they find that plaintiff was treated with unnecessary and reckless violence and indignity, then they may award such further damages as they may think proper to punish such conduct and deter the defendant from like conduct in the future."

By the plaintiff's fourth prayer the jury were instructed that "even if they shall believe, from the evidence, that the plaintiff acted in a disorderly manner, and persisted in such disorderly conduct to the annoyance of the passengers, or refused to show his ticket on the demand of the conductor, and that it then became necessary, under the rules and regulations of the company, for the conductor to eject him from the cars, and that he was so ejected,