Davenport v. City of Ottawa

54 Kan. 711 | Kan. | 1895

The opinion of the court was delivered by

Allen, J.:

The only question presented for our consideration by the record in this case is, whether the defendant sold lottery tickets. Counsel for appellant contend that there are two indispensable elements in the offense: “(1) A pecuniary consideration paid; (2) a determination by chance what and how much he who pays money is to have for it.” It is urged that the agreed facts show that the defendant was a merchant conducting a legitimate business, with a large stock of general merchandise, which he sold for the usual and ordinary prices, and that the scheme of giving the money in the box to whomsoever should chance to get the key that would unlock the box was merely in the nature of an advertisement, to draw attention and custom to the defendant’s store; that, inasmuch as the defendant received no more in any instance for his goods than their fair and usual market value, no compensation was paid for the chance, but that the keys to the box and the chance to obtain a prize were a free gift to his customers, which he had a perfect right to offer. This argument, while plausible, is not sound. The defendant advertised his goods for sale. At the same time he advertised that, to every purchaser of goods to the value of 50 cents or more, paying in cash therefor, a key would be given, and that the person receiving the key which would unlock the box should receive the $25 as a free gift. Each sale, then, was a sale, not of the goods, but of a chance to obtain $25.

In this instance, it may be conceded that the main purpose of the defendant was to increase his legitimate business by this scheme, and that the sale of merchandise was not used merely as a cover for conducting a lottery. The purpose of the defendant undoubtedly was to attract attention and stimulate trade at his store; but this case must be determined by the legal principles applicable to it. Suppose that, instead of a large stock of general merchandise, on which only moderate profits are made, the defendant kept only such articles as usually bear a very high percentage of profit, and, instead of offering $25, had offered $1,000, on precisely the same terms as this $25 was offered: could anyone doubt for a moment that those who are inclined to invest small sums for the purpose of gaining large ones would be likely to purchase articles for which they had no special need, merely with the hope of gaining the prize offered? Though the goods, in such a case, should be sold only at the regular retail price, the main business of the defendant would become that of selling chances to draw the $1,000, rather than merchandise for a legitimate; profit-The key, with the card attached, was in substance and effect a lottery ticket. Purchasers were given to understand, whether truthfully or not does not affect the case, that one key, and only one of those given out, would unlock the box, and that whoever chanced to get the proper key would get the money. It is said that no element of chance existed, because the right of the purchaser to obtain a prize was, in fact, absolutely determined the instant he received the key. If the key fitted the lock, the money was his from that instant. If it did not, it was not his.

This contention is not sound, though specious. Neither buyer nor seller was supposed to know which was the true key to the box, and the fact would only be actually determined when the trial was made at the time appointed to unlock the box. But, even if we assume that the chance was determined when the sale was made, it would be equally a lottery, for the fortunate person would at once obtain a right to the prize, though he could not in fact get it until the time appointed. The unfortunate purchaser would at once receive his merchandise and his blank in the lottery. No sound distinction exists between the principle involved in this case and that in the case of The State, ex rel., v. Mercantile Association, 45 Kas. 351. The case of The State v. Mumford, 73 Mo. 647, is also directly in point. Prizes were offered to subscribers to the Kansas City Times, each subscriber receiving a ticket entitling him to participate in a drawing of prizes, and no extra charge above the ordinary subscription price being made. The supreme court of Missouri held this a lottery, and that subscribers to the newspaper bought at the same time, and for one and the same consideration, the newspaper and the ticket in the lottery. So in this case, the purchaser, for one undivided price, bought merchandise and a ticket in the scheme which was to determine who should have the prize. These views are also upheld in the cases of Hudelson v. The State, 94 Ind. 426; United States v. Zeisler, 30 Fed. Rep. 499; Bell v. The State, 5 Sneed, 507; Thomas v. The People, 59 Ill. 160. Judgment affirmed.

All the Justices concurring.