18 Colo. 321 | Colo. | 1893
delivered the opinion of the court.
The principal question, and the only one of practical importance to the people and the plaintiffs in error, is presented by the fourth and fifth assignments of error; and, since it is decisive of the case, it is unnecessary to notice the other errors assigned.
The decision of this case depends upon the meaning to be given to the terms “ lottery and gift enterprise ” used in section 2196 of the General Statutes, page 677; and whether the facts admitted constitute a violation of that section.
Bishop defines a lottery as: “A scheme by which, on one’s paying money or some other thing of value, he obtains the contingent right to have something of greater value; if an appeal to chance, by lot or otherwise, under the direction of the manager of the scheme, should decide in his favor.” Bishop on Statutory Crimes, § 952.
The accepted doctrine by the court of appeals of New York is that given by Folger, J., in Hull v. Ruggles, 56 N. Y. 424:
“ Where a pecuniary consideration is paid, and it is to be determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to receive for it — that is a lottery.”
It majr be accepted as the result of the adjudicated cases, that a valuable consideration must be paid, directly or indirectly, for a chance to draw a prize by lot, to bring the transaction within the class of lotteries or gift enterprises that the law prohibits as criminal. Buckalew v. State, 62 Ala. 334; State v. Bryant, 74 N. C. 207; Com. v. Wright, 50 Amer. Rep. 306; State v. Clarke, 66 Amer. Dec. 723; State v. Shorts, 90 Amer. Dec. 668; Wilkinson v. Gill, 30 Amer. Rep. 264; Governors v. Art Union, 7 N. Y. 228; State v. Mumford, 73 Mo. 647; Hull v. Ruggles, 56 N. Y. 424; Thomas v. People, 59 Ill. 160; U. S. v. Olney, 1 Deady, 461; Yellowstone Kit v. State, 7 Southern Rep. 338.
The gratuitous distribution of property by lot or chance, if not resorted to as a device to evade the law, and no consideration is derived directly or indirectly from the party receiving the chance, does not constitute the offense. In such case the party receiving the chance is not induced to hazard money with the hope of obtaining a larger value, or to part
By the admitted facts it is shown that the plaintiffs in error gave business cards, which entitled the holders to a chance in a piano, to be distributed as the holders of such chances might elect. These tickets, or chances, were given indiscriminately to persons whether they purchased goods of plaintiffs in error or not — to those who registered their names at their shoe store, and to those, who, from a distance, sent the return postage. While it is admitted that Charles Linton purchased goods to the amount of one dollar at their store and received one of these cards, it is admitted that such purchase, or any purchase of goods, was not a condition upon which the card was delivered.
The fact that such cards or chances were given away to induce persons to visit their store, with the expectation that they might purchase goods and thereby increase their trade, is a benefit too remote to constitute a consideration for the chances.
Persons holding these cards, although not present, were, equally with those visiting their store, entitled to draw the prize. The element of gambling that is necessary to constitute this a lottery within the purview of the statute, to wit, the paying of money directly or indirectly for the chance of drawing the piano, is lacking, and the transaction did not constitute a violation of the statute.
The judgment of conviction is reversed and cause remanded with directions to dismiss the proceeding.
Reversed.