Gardner v. Case et al.

mortgage. The answer was accompanied by her affidavit. In that affidavit, sworn to on the 31st day of October, 1884, she stated that the two notes had been altered, and that she had no knowledge of such alteration until during, or subsequent to, the preceding June term of the court, when her attention was called to the notes by her attorney. At the March term, 1885, an affidavit by one of appellant's attorneys was presented in support of her motion for leave to file the answer. In that affidavit the attorney stated that he had been her attorney since January, 1884, and discovered the alteration in the notes (at what time he made the discovery was not stated); that he regarded the alteration as material, and intended to call appellant's attention to the fact, but forgot to do so during the March term, 1884, of the court, by reason of sickness which rendered him unable to attend court during a considerable portion of that term, and unfitted him to properly attend to business; that at the June term, 1884, he again forgot to call appellant's attention to the alteration, for the reason that a member of his family was sick, and required his personal attention about all the time, so that he was unable to attend to business; that soon after that term he called appellant's attention to the alteration, when she informed him that she desired the fact to be pleaded as a defence; that Mr. Branyan had been an assistant attorney in the case since the March term, 1884, but was not familiar with the case, and that his attention had not been called to the alteration of the notes until the December term, 1884.

It will be noticed that the affidavit of the attorney contained no excuse for not informing appellant and the assistant attorney of the alteration in the notes, between the March and June terms of the court in 1884, and that no excuse was given by either appellant or her attorneys for not presenting the answer during the October term, 1884.

At the request of appellant the trial court made a special finding of facts, with conclusions of law thereon.

VOL. 111.-32

Gardner v. Case et al.

It found that the debt secured by the mortgage was the debt of the appellant's husband, and that she mortgaged her separate real estate for the security of that debt, but did not find by what method she acquired the property, whether by purchase, descent, devise or gift.

Appellant excepted to the finding of facts, and now insists that, upon the evidence, the court should have found that she acquired the property by descent and gift. The exception can be of no avail to appellant for two reasons. In the firstplace, under the pleadings, there was no issue finding as to the ownership of the property. Dale, 86 Ind. 435.

requiring a

Thomas v.

In the second place, a simple exception to a finding of facts does not raise the question as to whether or not the finding is in accordance with, is sustained by, or is contrary to, the evidence. Those questions must be raised by a motion for a new trial. Ex parte Walls, 73 Ind. 95; Western Union Tel. Co. v. Brown, 108 Ind. 538; Dodge v. Pope, 93 Ind. 480.

Upon the facts found, the court determined as a matter of law that the mortgage was a valid and subsisting lien upon the real estate. To that conclusion of law appellant excepted. It is well settled that an exception to conclusions of law, for the purpose of the exception, admits that the facts have been fully and correctly found. Wynn v. Troy, 109 Ind. 250; Bass v. Elliott, 105 Ind. 517; Helms v. Wagner, 102 Ind. 385.

Upon the facts found, so far as they are within the issues, the conclusion of law by the court below, that the mortgage was a valid and subsisting lien upon the real estate, is

correct.

As before stated, appellant confessed a motion to strike out a portion of her answer filed in March, 1884. That confession carried out of the case all averments as to the ownership of the property mortgaged. Therefore, the finding in

Trout v. The State.

general terms that the real estate belonged to appellant must be disregarded. Thomas v. Dale, 86 Ind. 435; Bixel v. Bixel, 107 Ind. 534.

Judgment affirmed, with costs.

Filed Sept. 20, 1887.

No. 13,310.

TROUT V. THE STATE.

CRIMINAL LAW.-Lottery.-Sale of Share or Chance in.—Information.—Sufficiency of.-An information charging the sale of a share or chance in a lottery scheme or gift enterprise, substantially in the language of section 2077, R. S. 1881, defining the offence, is good on motions to quash and in arrest of judgment.

SAME.-Repugnant Allegations.-Surplusage.-Motions to Quash and in Arrest. --Contradictory and repugnant allegations in an information, unless containing matter which, if true, constitutes a legal bar to the prosecution, will be regarded as surplusage and afford no ground for quashing the information, where the offence is charged therein with sufficient certainty.

SAME.-Weight of Evidence.-A verdict will not be disturbed on the weight of the evidence.

From the Marion Criminal Court.

J. N. Scott, for appellant.

L. T. Michener, Attorney General, and J. H. Gillett, for the State.

Howk, J.-In this case appellant was prosecuted and convicted upon affidavit and information for the unlawful sale of a share in a lottery scheme and gift enterprise. From the judgment of conviction he has appealed to this court, and has here assigned errors which call in question the overruling (1) of his motion to quash the information, (2) of his motion for a new trial, and (3) of his motion in arrest of judgment.

Trout v. The State.

Of these alleged errors the first and third will be considered together, as they each present the single question of the alleged insufficiency of the facts stated in the affidavit and information herein to constitute a public offence.

It was charged, substantially, in the affidavit and information that, on November 17th, 1885, at and in Marion county, appellant unlawfully sold to John W. Page for the sum of ten cents, then and there paid by Page to appellant, one share, chance and opportunity to draw in a certain lottery scheme and gift enterprise for the division of personal property, to wit, certain sums of lawful money of the United States, to be determined by chance and lot, which said sums of money and a particular description thereof were to affiant unknown, and, therefore, could not be given; and the plan and scheme for the division and distribution of such sums of money, by said lottery scheme and gift enterprise, were to affiant unknown, and could not be given; and the mode of operating and conducting such lottery scheme and gift enterprise, and the name and style and a more particular description thereof, were unknown to affiant, and, for that reason, could not be given; that, as a part of such lottery scheme and gift enterprise, appellant permitted said Page, in consideration of the aforesaid. sum of ten cents so paid to appellant as aforesaid, to select any three numbers from a large number of numbers designated by appellant, and in the event two of the three numbers, so selected by said Page, were drawn, designated and selected by the managers and operators of such lottery scheme and gift enterprise, said Page would be entitled to a large share of money, to wit, the sum of forty-six cents, of the sum of money to be divided as aforesaid by the managers and operators of such lottery scheme and gift enterprise as aforesaid; and in the event two of such three numbers were not drawn, designated and selected by said managers and operators, then the said Page would not receive any part or share whatever of said sum of money; that thereupon, said Page then and there selected and designated the numbers 3-19-67, from

Trout v. The State.

said large number of numbers, and then and there paid appellant for the share and chance aforesaid the sum of ten cents as aforesaid; and according to the plan and scheme of said lottery scheme and gift enterprise, said numbers 3–19–67 entitled said Page, the purchaser thereof, to the sum of fortysix cents of the sum of money to be so divided as aforesaid, in case two of the three of said numbers were drawn, designated and selected from a large number of numbers by the managers and operators of said lottery scheme and gift enterprise; and in case two of said numbers 3-19-67, so purchased as aforesaid, were not drawn, designated and selected as aforesaid by the managers and operators of such lottery scheme and gift enterprise, then, and in that event, said Page would not be entitled to and would not receive any part or share of the money to be so divided by chance and lot by the managers and operators of said lottery scheme and gift enterprise as aforesaid.

From the facts stated and recited in the affidavit and information herein, the substance of which we have given, it is manifest that it was intended to charge appellant therein and thereby with the offence against public policy which is defined, and its punishment prescribed, in section 2077, R. S. 1881.

That section reads as follows: "Whoever sells a lottery ticket or tickets or share in any lottery scheme or gift enterprise; or acts as agent for any lottery scheme or gift enterprise; or aids or abets any person or persons to engage in the same; or transmits money by mail or express, or otherwise transmits the same, to any lottery scheme or gift enterprise for the division of property, to be determined by chance; or makes or draws any lottery scheme or gift enterprise for a division of property not authorized by law,-on conviction thereof, shall be fined in any sum not more than five hundred dollars nor less than ten dollars."

With the statute defining the offence charged and the foregoing summary of the facts stated in the affidavit and infor