101 S.E. 385 | N.C. | 1919
Lead Opinion
after stating the case: It seems to us that the special verdict places this case alongside of those we have held like schemes for making money by the lure of a chance to get something in exchange either for nothing or for something of much less value. It is a direct, though in this case not a very artful appeal, to the gambling instinct. The object of this gift enterprise, or whatever you may call it, to evade the law against conducting lotteries, while sufficiently visible, is attempted to be concealed under the artful contrivance of a transaction having the false garb of simplicity and fair dealing, but the law denounces it all the same.
A lottery, for all practical purposes, may be defined as any scheme for the distribution of prizes, by lot or chance, by which one, on paying-money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value, or nothing, as some formula of chance may determine. This definition has. generally been approved by the authorities. S. v. Lipkin, 169 N. C., 265, 271; S. v. Perry, 154 N. C., 616, and cases cited; Long v. State, 74 Md., 565. We could not better show the real character of this new device than to rejiroduce, to some extent, what we have heretofore substantially said about such attempts to circumvent the law against lotteries in S. v. Perry, supra, and S. v. Lipkin, supra: “The sale of the ticket gave the
The Austrian Bond cases illustrate the idea of the law as to what is a lottery. It was said of the chance feature, involved in their sale and purchase, by the Court in Ballock v. State, 73 Md., 1 (8 L. R. A., 671), and approved by the highest Federal Court in Horner v. United States, 147 U. S., 449 (37 L. Ed., 237), that at some uncertain period determined by the revolution of a wheel of fortune, the purchaser of a bond does get his money repaid; but we do not think this deprives the thing
As to what has been held to be lotteries by the courts of the several States, reference may be made to Com. v. Chubb, in the general court of Virginia, 5 Rand. (Va.), 715; Dunn v. People, 40 Ill., 465, where it was said that the character of the transaction would not be changed by assuming that the ticket represented an article of merchandise intrinsically worth the amount which the holder thereof would be obliged to pay, and that if every ticket in any ordinary lottery represented a prize of some value, yet if those prizes were of unequal values, the scheme of distribution would still remain a lottery; Thomas v. People. 59 Ill., 160, where a ticket was a receipt for money in payment for the delivery of a copy of an engraving, and for admission to certain concerts and lectures, for which it was sold, and money was to be distributed in presents amounting to a certain number, to the purchasers of engravings, and it was held that that was a scheme for the distribution of prizes by chance, and constituted a lottery, it being ajiparent that some of the purchasers would fail to receive a prize, and that even if the ticket to the concerts and
"With these guides before us, lot us examine the particular facts of this case and apply what appears to be the settled law, referring first to S. v. Perry, supra, where it is said: “By the turn of a crank patrons of this defendant received a good return for a comparatively small outlay, the right to which was determined, not by skill or legitimate effort, but by luck or chance. It is gambling, pure and simple, and has fallen under the ban of an enlightened public opinion, and is condemned by the law.” The scheme here is a simple one, and the amount of possible gain very small; but if it may be applied legitimately to “collar buttons and a box
We suppose that there are still some left who will continue to experiment with this law against the lottery, one of the worst and most demoralizing forms of gambling, because it induces and inveigles others to become victims of its debasing tendencies, and fosters the evil habit of trying to get something for nothing, in order to make riches quickly and by what is mistakenly supposed to be the shortest and easiest method. When once imbued with the spirit of this sort of gambling it leads to other evils of a more wicked character, and more dangerous and hurtful to the general public, who are the innocent sufferers.
This cunningly devised instrument, called by the seductive and misleading name of “merchandise vender,” is worked by a slot and crank, instead of a “wheel of fortune.” A patron buys a card for five cents— not knowing how many have bought before him — in the hope that by mere chance he may become the fortunate holder of the lucky card. He will get a collar button for the five cents he invests, and may get something more, valued at fifty cents. In other words, for five cents he may, if his luck is good, “win” fifty cents worth of property, in the form of a box of candy. The case, in this aspect, is not at all different in principle from S. v. Lumsden, 89 N. C., 572, and is much like it in its facts. It appeared there that the defendant sold to customers small boxes of candy, of trifling value, for the chance or opportunity of designating one of certain pictures, conveniently arranged in his place of business, be-
If-there were no element of chance in this new — though not very novel scheme, but a slight variation from others which have been unsuccessfully tried — it would attract no customers and would work no harm to the public, but with the element of chance, which too plainly exists to be concealed even from an unsuspecting jury, or court, it is a clear menace to public morals.
The manager of a device, such as that described in this case, who invites others to take a chance at the play, is guilty under the statute of conducting a lottery, as much so as if the risk was the same as in throwing dice, or in the turn of the cards in poker or faro. It is not the degree of risk, whether great or small, that determines the unlawful element in the scheme, but the mere chance of winning appeals to the cupidity of others, and tempts them to try their luck, and play at the game.
However these attempts to evade the statute may be concealed, the law will uncover them, and, in order to prevent their repetition, will lay its hand heavily upon the perpetrator, as it should do. No more effective way of repressing crime has ever been devised than swift, adequate, and, above all, certain punishment, especially for those who resort to evasion in order to escape the penalty. The frequency of such attempts calls for vigorous treatment.
The judgment of the court is reversed, and set aside, a verdict of guilty will be entered upon the special findings, and such other proceedings had as the law provides.
Reversed.
Concurrence Opinion
concurring: The amounts involved in this case are very small, but the principle is that of a lottery, and, if admissible, can be used in larger enterprises. It is true that the number who can receive a prize is fixed at one in twenty, but the element of chance is as to who shall be the twentieth man.
In the Texan War for Independence against Mexico some 250 Texans (10 of them from this State) surrendered as prisoners of war at Mier,
Lead Opinion
The jury returned a special verdict as follows:
"The defendant is a merchant in the city of Asheville, and used in connection with his business a machine called a `merchandise vendor,' which is so constructed as to hold a large number of cards in parallel columns and with a glass front. There are six of these *829 columns of cards, and each card calls for a particular article of merchandise, and gives the price of such articles of merchandise. A prospective purchaser could purchase any of the articles of merchandise shown on such cards for the price stated thereon by pulling a slot which would remove such card from the machine. Six cards were displayed to a prospective purchaser, giving the articles and prices aforesaid, and the purchaser could draw out either of said six cards and obtain the articles of merchandise mentioned thereon by paying the price indicated on said card. As each card is drawn out, another card takes its place. In each instance the purchaser sees the card before it is withdrawn from the machine, and knows the articles of merchandise called for and the price to be paid by him therefor, but until the card is withdrawn does not see the name of the article on the succeeding card. The machine operated by the defendant was arranged to vend collar buttons at 5 cents each, and all of the cords in said machine had the words `collar buttons,' and the figure and word `5 cents' printed thereon, with the exception of certain cards, which had printed thereon the words `One box of candy,' and the figure and word `5 cents.' The cards were so placed in said machine that every twentieth card to be drawn therefrom called for a box of candy, while all the other cards called for a collar button, and the defendant advertised that every twentieth card in the case would entitle the purchaser thereof to a box of candy. As the cards are drawn from the machine, they are presented to the defendant, who gives the purchaser the article called for on such cards, and collects from such purchaser the amounts stipulated on such cards. Each box of candy was worth 50 cents, but the price charged through the machine is 5 cents. The witness for the State went into the place of business of the defendant and to said machine, where he saw a card reading, "One collar button, 5 cents,' and next to the machine he saw displayed in the showcase a large number of collar buttons, each of which were regularly retailed for 5 cents, which he was informed were the collar buttons called for (772) on the cards in said machine. The State's witness then drew one card from said machine with the words and figures `One collar button, 5 cents,' thereon, which he presented to the defendant and thereupon received from the defendant one collar button, and paid the defendant 5 cents. If upon the foregoing statement of facts the court be of the opinion that the defendant is guilty, the jury so finds; but if upon the foregoing statement of facts the court be of the opinion that the defendant is not guilty, the jury so finds."
The court rendered the following judgment upon the verdict:
"Upon the coming in of the foregoing special verdict, the court *830 is of the opinion that the defendant is not guilty of the charge contained in the bill of indictment, but that he is operating a gift enterprise, taxable under the Revenue Act as such, and that a license authorizing the defendant to carry on such gift enterprise is a protection against a criminal prosecution. It is, therefore, adjudged that the defendant is not guilty, and that he be discharged."
The State excepted and appealed. after stating the case: It seems to us that the special verdict places this case alongside of those we have held like schemes for making money by the lure of a chance to get something in exchange either for nothing or for something of much less value. It is a direct, though in this case not a very artful appeal, to the gambling instinct. The object of this gift enterprise, or whatever you may call it, to evade the law against conducting lotteries, while sufficiently visible, is attempted to be concealed under the artful contrivance of a transaction having the false garb of simplicity and fair dealing, but the law denounces it all the same.
A lottery, for all practical purposes, may be defined as any scheme for the distribution of prizes, by lot or chance, by which one, on paying money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value, or nothing, as some formula of chance may determine. This definition has generally been approved by the authorities. S. v. Lipkin,
The Austrian Bond cases illustrate the idea of the law as to what is a lottery. It was said of the chance feature, involved in their sale and purchase, by the Court in Ballock v. State,
As to what has been held to be lotteries by the courts of the several States, reference may be made to Com. v. Chubb, in the general court of Virginia, 5 Rand. (Va.) 715; Dunn v. People,
With these guides before us, let us examine the particular facts of this case and apply what appears to be the settled law, referring first to S. v.Perry, supra, where it is said: "By the turn of a crank patrons of this defendant received a good return for a comparatively small outlay, the right to which was determined, not by skill or legitimate effort, but by luck or chance. It is gambling, pure and simple, and has fallen under the ban of an enlightened public opinion, *834
and is condemned by the law." The scheme here is a simple one, and the amount of possible gain very small; but if it may be applied legitimately to "collar buttons and a box of candy," it may (776) as well be applied to houses and lots, or to any other valuable property. We do not understand that the relative amount of gain in any sense fixes the criminality of such devices. As shown in the above extract, the test is the venturing of small sums of money upon the chance of obtaining a larger value. This definition certainly shows that the scheme here was a lottery within the meaning of our statute. There were columns of cards in the machine, it is stated, with a glass front so arranged that only one card could be seen. Upon that card was printed the article to be purchased and the price. The proposed purchaser, by pulling a slot, removes the card from the machine and takes it to the merchant, to whom he pays the price and receives the article. The machine is called a "merchandise vender." So far the transaction appears to be perfectly innocent. As a matter of fact, however, using the evidence in this case as a basis for further discussion, when the purchaser moves the card from the machine another card drops down in its place. The cards were so arranged that nineteen of them had printed on them "Collar button, 5 cents," while every twentieth card, though costing only 5 cents, entitled the holder to a box of candy worth 50 cents. The element of chance here is that the purchaser of a collar button for 5 cents may, under a certain contingency, receive a box of candy worth fifty cents for only five cents. It seems that the judge had some idea that because the recurrence of a box of candy was automatically fixed to be at regular and invariable periods, or intervals, that, therefore, there was no element of chance in it so far as the merchant was concerned. This suggestion, however, is fully met by S. v. Lipkin,
We suppose that there are still some left who will continue to experiment with this law against the lottery, one of the worst and most demoralizing forms of gambling, because it induces and inveigles others to become victims of its debasing tendencies, and fosters the evil habit of trying to get something for nothing, in order to make riches quickly and by what is mistakenly supposed to be the shortest and easiest method. When once imbued with the spirit of this sort of gambling it leads to other evils of a more wicked character, and more dangerous and hurtful to the general public, who are the innocent sufferers.
This cunningly devised instrument, called by the seductive and misleading name of "merchandise vender," is worked by a slot and crank, instead of a "wheel of fortune." A patron buys a card for five cents — not knowing how many have bought before him — in the hope that by mere chance he may become the fortunate holder *836
of the lucky card. He will get a collar button for the five cents he invests, and may get something more, valued at fifty cents. In other words, for five cents he may, if his luck is good, "win" fifty cents worth of property, in the form of a box of candy. The case, in this aspect, is not at all different in principle from S. v. Lumsden,
If there were no element of chance in this new — though not very novel scheme, but a slight variation from others which have been unsuccessfully tried — it would attract no customers and would work no harm to the public, but with the element of chance, which too plainly exists to be concealed even from an unsuspecting jury, or court, it is a clear menace to public morals.
The manager of a device, such as that described in this case, who invites others to take a chance at the play, is guilty under the statute of conducting a lottery, as much so as if the risk was the same as in throwing dice, or in the turn of the cards in poker or faro. It is not the degree of risk, whether great or small, that determines the unlawful element in the scheme, but the mere chance of winning appeals to the cupidity of others, and tempts them to try their luck, and play at the game.
However these attempts to evade the statute may be concealed, the law will uncover them, and, in order to prevent their repetition, will lay its hand heavily upon the perpetrator, as it should do. No more effective way of repressing crime has ever been devised than swift, adequate, and, above all, certain punishment, especially for those who resort to evasion in order to escape the penalty. The frequency of such attempts calls for vigorous treatment.
The judgment of the court is reversed, and set aside, a verdict *837 of guilty will be entered upon the special findings, and such other proceedings had as the law provides.
Reversed.
CLARK, C.J., concurring.