304 Mass. 521 | Mass. | 1939
The defendant has been convicted of setting up and promoting a lottery in violation of G. L. (Ter. Ed.) c. 271, § 7. The lottery consisted in the operation of an advertising scheme called “Bank Night” by which prizes were given away to persons who had previously registered and whose numbers were drawn on a platform in front of the screen in a moving picture theatre at Middleborough of which the defendant was manager.
The general plan of “Bank Night” as operated by the defendant was similar to that described in Commonwealth v. Wall, 295 Mass. 70, and need not be described in detail here. At the exhibition in the evening of the day specified in the complaint the defendant, inside the theatre, called the name of one Boehme as a prize winner. According to the evidence Boehme was then on a parking lot where “the
There was no error in the refusal to direct a verdict for the defendant. In Commonwealth v. Wall, 295 Mass. 70, 72-73, we held that the essence of a lottery is “a chance for a prize for a price”; that the price must be something of value and not merely the formal or technical consideration, such as registering one’s name or attending at a certain place, which might be sufficient consideration to support a contract; that the price “must come from participants in the game in part at least as payments for their chances”; that “the indirect advantage to the theatre of larger attendance is not in itself a price paid by participants”; and that the test whether a “Bank Night” is a lottery “is not whether it was possible to win without paying for admission to the theatre,” but is “whether that group who did pay for admission were paying in part for the chance of a prize.” Upon evidence outlined in the opinion in that case we held that the jury could find that the crowds which filled the theatre on “Bank Night” “paid to come in partly because they had, or reasonably believed they had, a better chance to win the prize than if they had stayed, outside, that they paid their money in part for that better chance, and that the scheme in actual operation was a lottery.” We think that the jury could make similar findings in this case.
Without undertaking to state all the evidence, there was testimony tending to show the following: On December 22, which was a “Bank Night,” the theatre was filled, except several rows in the extreme front. On December 28, which was not a “Bank Night,” the theatre was little more than half filled. On December 28 the attendance was one hundred thirty-one, but on December 29, “Bank Night,” although the show was the same, the attendance was three hundred thirty-two. More people came on “Bank Night” than on the other night when the same show was given. “Bank Night” advertised the theatre, so that more people
Perhaps it would be more convenient for law enforcement officers and for such proprietors of theatres as care to use this kind of advertising if we could issue a pronouncement either that “Bank Night” is a lottery or that it is not a lottery. But there is no peculiar law applicable to “Bank Night” under which we can make a' ruling of that kind. Each instance must be judged by the general principles of
There was no error in excluding evidence of declarations made out of court of “large numbers” of “people in Middle-borough,” not shown to have been patrons of the theatre, that they “knew Bank Night was free.” Without discussing evidence of this kind in other respects, it is enough to say that the beliefs of these people do not appear to have been material, and that it would have been wholly impractical to enter into such a field of inquiry. See Bemis v. Temple, 162 Mass. 342, 344.
The defendant complains that the judge quoted to the jury in his charge expressions from the opinion in Commonwealth v. Wall in such a manner as to prejudice his rights. It is proper to quote or to paraphrase to the jury statements made by this court in decided cases, provided of course that care is taken to see that the statements are properly applied to the case in hand and do not leave any false impression as to the duty of the jury. Commonwealth v. Dow, 217 Mass. 473, 483. We think that the judge did not offend in this respect. The quotations were applicable to this case. Correct tests of criminality were given to the jury in accordance with Commonwealth v. Wall.
There was no error in refusing to instruct the jury that “any increase in attendance” at the theatre because of “Bank Night” “is not in itself a price paid by participants.” Taking the request literally, there was no reason to apprehend that any jury would find that an increase in attendance was a price. But if the request be taken to mean that the pecuniary advantage to the theatre from larger attendance
The remaining requests that have been argued are covered in principle by what has already been said or were given in substance in so far as consistent with Commonwealth v. Wall. We find no error in the manner in which the judge dealt with them.
Exceptions overruled.