160 Misc. 174 | New York County Courts | 1936
For the purpose of attracting persons to the moving picture theatre of which the defendant was manager, a scheme was conducted known as bank nite, which the People claim is a lottery. The information charges that on the 12th day of June, 1936 the defendant offered “ property for disposal dependent upon the drawing of a lottery.” Briefly the details of the scheme are as follows: A book known as a registration book was placed in the lobby of the theatre and the purpose of this book was to obtain signatures of persons who desired to participate in a drawing for money donated by the theatre to the winners on the drawing and at the time of the signing of the book a number was assigned to each person who
Lottery is defined under section 1370 of the Penal Law as follows: “ A ‘ lottery ’ is a scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name.” "Under this definition there are two essential, elements which constitute lottery: First, a scheme for the distribution of property by chance; second, payment or
The authorities seem to be in accord with these views. The principles involved in the case at bar are the same as those in the case of People v. Mail & Express Co. (179 N. Y. Supp. 640; affd., 192 App. Div. 903; affd., 231 N. Y. 586), In that case the owners of a newspaper conducted a scheme of giving away cash prizes for the purpose of increasing the circulation of the paper. The participants paid nothing for the chance to participate in the drawing. The only difference that I can find between that case and the instant case is, that the winners in the Mail & Express case were required to call at the office of the newspaper within five days to receive the prize, while in the instant case the participants were required to appear at the theatre within five minutes after the announcement that they had won. It seems to me that the case cited is an answer to the trial judge when he ruled that the requirement of the presence of the winner in the lobby and making himself known within five minutes is sufficient consideration.
There are two cases in other jurisdictions which are exactly in point because this same bank nite scheme was under consideration.
The district attorney cites .the case of People v. Miller (271 N. Y. 44). That case does not apply because the issue was different from the case at bar. The court stated that the question to be determined in that case was whether a payment which entitles one to a ticket of admission to the theatre plus a chance to win a prize constitutes payment of a valuable consideration for the chance, an entirely different situation from that which exists in the instant case. In the case cited, the participant was required to purchase a ticket of admission in order to be entitled to participate in the drawing, while in the present case there was no such condition. The court held that the patron paid a valuable consideration for something determinable by chance because in addition to the right to view the picture he received the additional right to participate in the drawing. It seems to me that in a negative way this case supports the contention of the defendant. In that case the defendants offered evidence tending to show the possibility of participation in the chance by those who bought no ticket of admission to the theatre and in no way paid any valuable consideration for the opportunity to share in the chance but the trial court rejected the credibility of such testimony. The court held that in view of that rejection
The People have cited other cases but in practically all of them there was a valuable consideration paid for ¡the chance with the exception of the case of Maughs v. Porter (157 Va. 415; 161 S. E. 242). This case has been severely criticised by various courts and I am convinced that it is not controlling in the case at bar.
Mr. Justice Fres chi in his concurring opinion in the Mail & Express case makes the following statement which I think applies to the case at bar:
“ In order to make out'a case under our statute, the court must find in the facts charged an element of risk; in other terms, there must be something of value ventured for some gain. The feature of a gamble must be present in-all its aspects. Valuable consideration must be parted with, or there must be an expressed or implied agreement to pay it.
“ It is plain, in the case at bar, that the opportunity to participate in the prize drawing costs nothing; and, under these circumstances, it cannot be held that the relation between the parties is contractual, creating such an obligation upon which a legal right could be predicated. At most, it seems to me, the holder .óf a coupon can assert only a moral right in the premises; and this, sort of a right arises only when the gift coupon is acquired and his number is-drawn.”
Tam satisfied from the proof in this ease that at the time that the patron acquired the right to participate in théidrawing for the prize, he neither paid a valuable consideration for the chance nor made an agreement either express or implied to pay su’eh consideration. His participation in the drawing was absolutely free and there was no violation of the law. The judgment of conviction should be reversed, the complaint dismissed and the defendant discharged.
Let an order be entered accordingly.