Ex parte Shobert

Belcher, C. C. The petitioner was accused of selling a lottery ticket in the city of San Francisco, and was tried and convicted. The complaint against him contained a copy of the supposed lottery ticket; and it appears therefrom to have been one of seventy thousand bonds or obligations, for one hundred francs each, which were issued by the city of Brussels in 1853. The bond in question is numbered 387, and provides that the holder shall be entitled to the repayment of his capital, and interest thereon at the rate of three per cent, payable annually. It further provides, in effect, that two hundred of the bonds or obligations shall become due and payable at the end of the first year, two hundred and six at the end of the second year, and two hundred and twelve at the end of the third year, etc., all of them payable in sixty-six years.

[631]To ascertain what particular bonds are payable in any one year, a drawing is to be had on the thirty-first day of December of each year, or if that day be a Sunday or holiday, on the evening before, and the bonds bearing the numbers drawn are then to be paid on the thirty-first day of March following. . It is further provided that the holders of the bonds bearing the first forty numbers drawn shall be paid premiums, ranging from twenty-five thousand francs for the first down to two hundred francs for the last. '

Is the instrument above described a “ ticket, chance, share, or interest in or depending upon the event of any lottery,” the sale of which in this state is prohibited by sections 319 and 321 of the Penal Code?

In Kohn v. Koehler, 96 N. Y. 362, a similar question was before the Court of Appeals of New York. In that case, the bond in question was one of certain bonds issued by authority of the government of Austria, and by which that government obligated itself to pay the principal of the bonds with interest and a premium named, and also any additional sum which the holder might become entitled to in case the number of his bond drew a prize in a drawing to be had as specified.

The court said: “The evident object and purpose of the government in issuing the bonds was to obtain money for its own use and benefit. According to the true interpretation of the instrument, the government, upon receiving the money, promises to pay the principal, interest, and premium named, and in addition any sum which may be drawn by the holder of the bond, in accordance with the rules and regulations indorsed thereon. This additional sum depends upon a contingency, which is to be decided by lot or chance. Independent of this, the amount and the terms are fixed by conditions of the bond. The substance of the transaction relates to a loan of money to the government, and the provision made for its payment. This is the main object and purpose for