Thе defendant was found guilty by a jury in the Superior Court on two complaints under G. L. (Ter. Ed.) c. 271, one charging that he “was concerned in setting up and managing a certain lottery for money and merchandise” (§7), and the other charging that he “did commonly keep and suffer to be kept in a building and place actually used and occupied by him” “certain apparatus, to wit, a slot machine for the purpоse of playing at an unlawful game or sport for money or other thing of value” (§ 5). Sentence was imposed, but execution thereof has been suspended. Upon motion, the complaints were consolidated for the purpose of filing and presenting the defendant’s exceptions to this court.
A description of the machine involved in the cases as presented in the record is as follows: “The machine works primarily on the same principle as travelling excavating cranes are employed in commercial and industrial use. Upon a supporting platform a ground is made of hard candy about the size of small pebbles, loosely spread. Positioned upon this support are placed various objects of merchandise consisting generally of cloсks, knives, cigarette lighters, cameras, flashlights, compacts, and other specialty items. These articles are positioned and displayed in what is known as the operating field. To the rear of the display case, there is a boom from which is suspended a grasping device. When the machine is not in play, the boom is in a vertical or nearly vertical position. The grasping device has three prongs, which when extended has [sic] a spread of approximately three and five eighths inches. The machine is constructed mechanically so that the grasping device can be dropped to practically any point within the operating field. Its aim from right to left and from left to right is controlled by a regulator wheel on the face of the machine. This regulator wheel as it is turned, correspondingly and accurately change[s] the aim of the boom. The point from front to rear at which the grasping device will light, is shown on an indicator on the rear of the machine, which indicator is plainly marked at its extreme front and rear respectively, and which by lines across the indicator, indicates changes
A summary of all the testimony material to the issues raised is set forth in the record. There was evidence that on August 30, 1935, three Springfield police officers, acting under orders of Captain Blodgett, visited three places to make an examination of so called “digger” machines. One officer, Murphy, testified that he played each of three machines several times, and that his companions did likewise. As to the grasping device on the machines the same officer testified: “On those occasions I attempted to manipulate the machine so that it would pick up a particular object other than the candy. I tried so it would get over and clamp on it. It would either pull one side or the other or if it gripped it it would not hold it, except that there . . . [indicating an article which he had secured]. I did not try to get that. It just caught it. I tried to fix it on some other article. I think it was the clock I was after. This pronged instrument with my directing of it would fix on the clock several times but it would slip or let go of it. In other words, it did not hold it and return it into opening and into the slot there. . . . Merely by the operation of the wheel you fix the general direction in which the derrick when the machine begins to function will go. Then your part is over. When
One of the defendant's machines, seized at a bus terminal, was brought into court at the trial so that it could be operated before the jury. The defendant objected to such demonstration on the ground that the mechanism had been damaged in transit from the bus terminal to the court room. The trial judge sent out the jury and heard evidence on this preliminary question. Captain Blodgett testified that the machine had been carefully moved in an upright position by professional truckmen. He also arranged the articles to be picked up in such positions as, he testified, substantially represented their positions when the machine was at the bus terminal. Thereupon the trial judge, over the exceptions of the defendant, allowed the machine to be played before the jury. The dеfendant also excepted to the admission of evidence of the results of experiments conducted in the District Court, on the ground that at that time the articles in the machine were not in the same positions as they were when it was at the bus terminal.
The testimony favorable to the defendant was to the effect that successful operation of the machine depended on the skill of the operator, that the machine used for the experiments was not in proper working order at the time of the trial, and that the witnesses in their unsuccessful operation of the machines did not follow the directions set out on the top of the machine.
At the close of the testimony the defendant presented written motions for verdicts of not guilty, together with a number of requests for instructions. The motions for directed verdicts were denied. As to the requests, some were given and some refused. Since the defendant has not argued the question of the correctness of the action of the trial judge upon the separate requests, it is unnecessary to set them forth separately or so to consider them. The defendant also excepted to portions of the charge оf the trial judge.
The questions argued by the parties are (1) whether
As to the first point the defendant argues that the experiments before the jury should not have been allowed because the machine was not in the same state of mechanical perfection as it was when in operation at the bus terminal. In general, the admission or exclusion of evidence of this type lies in the discretion of the trial judge and his ruling thereon will not be reversed unless plainly wrong. Thornhill v. Carpenter-Morton Co.
The defendant also argues that evidence as to the results of experiments in the District Court should not have been admitted because the articles were not in the same positions at the time when the machines were played in public places as they were at the time of the experiments in the District Court. Assuming the validity of an objection to the competency of the evidence on that ground, still, no error was committed inasmuсh as it could have been found from the evidence that the articles were in substantially the same position, with the possible exception of three of them. The
The defendant’s remaining exceptions relate to the denials of his motions for directed verdicts, and to the charge of the trial judge with reference to the elements of a lottery. The defendant contends that his motive in maintaining the machines was the establishing of a market for the articles which were in the machines, and which he manufactured. He contends also that the successful operation of the machines depended on skill rather than chance, and that the machines did not appeal to the gambling instincts of the public but that their appeal lay in the attraction to try one’s skill.
Generally speaking, the word “lottery” signifies a scheme for the distribution of prizes by chance. Commonwealth v. Mackay,
The simplest form of lottery is, perhaps, a game depending wholly on chance in which the skill of the player is not a factor, such as games popularly known as raffles and punch boards. See Commonwealth v. Wright,
' In the cases at bar there was evidence from which the jury could have found that after' a certain point in the operation of the machine, the player could no longer exercise any skill or even control over the mechanism, and that whether the grasping device secured and carried up any desired object depended on chance. It would seem, ■therefore, that the operation of the machine, under the above stated rule, could have been found to be а lottery even though an element of skill was present. If the machine did constitute a lottery it could have been found, and indeed it is not controverted, that the defendant was also guilty on the complaint charging him with keeping the machine in a place actually used and occupied by him. Compare Commonwealth v. Ward,
The defendant also argues that the following parts of the charge of the trial judge were erroneous: “But the mere fact that winning a prize in a game may require some skill, or even a very high degree of skill, and that skill is "a very great factor in it, does not make a game any the less a lottery if it has other features necessary to make it a lottery. In other words, the presence or аbsence of the required skill to win a prize in a game has nothing vitally to do with whether or not the game is a lottery. Again in other words, no matter how much and how great skill is required the game is still a lottery if it has the other required features of a lottery. That means that it is not necessary
The defendant argues that the test submitted to the jury was not in accordance with the test discussed above. But the test as to whether chance predominates over skill is not the only test of whether a game is a lottery. Thus the alternative test is also stated in the cases that if the element of chance is present in such a manner as to thwart the exercise of skill or judgment in a game, then there may be a lottery. Commonwealth v. Theatre Advertising Co. Inc.
We find no error in the admission of evidence, the denial of the defendant’s motions for directed verdicts, the denial of the defendant’s requests for instructions, or in the instructions given.
Exceptions overruled.