A complaint charged that the defendant "did keep set up and promote a certain lottery" in a certain building, without alleging that the lottery was kept or promoted for money or other thing of value. Held, that, if the complaint was defective, the defect was formal and could not be taken advantage of by the defendant by motion in arrest of judgment after trial and conviction.
HAMMOND, J.
Both in the popular and legal sense, the word "lottery" signifies a scheme for the distribution of prizes by chance. Cent. Dict. "Lottery." Bouvier's Law Dict. "Lottery."
Pub. Sts. c. 209, § 1, forbids the setting up of a lottery for money, or other thing of value, and while the complaint may be defective in form in not saying that the lottery was for money or other thing of value, Commonwealth v. Horton, 2 Gray, 69, the term is broad enough to include such a lottery, and, after trial and conviction, it is to be assumed that the evidence warranted a conviction of setting up an illegal lottery within the terms of the statute. Such an offence was within the jurisdiction of the court.
The defendant, having gone to trial upon the defective complaint, cannot now take advantage of the defect by motion in arrest of judgment. Pub. Sts. c. 214, § 27. For further legislation as to lotteries, see St. 1892, c. 409; St. 1895, c. 419, §§ 1, 2, 3, 8, 9.
Motion in arrest of judgment overruled.