60 P.2d 938 | Or. | 1936
Lead Opinion
IN BANC. M.P. Schwemler was convicted of setting up and promoting a lottery, and he appeals.
AFFIRMED. REHEARING DENIED. The defendant was convicted of the crime of setting up and promoting a lottery, which, under section 14-801, Oregon Code 1930, is a criminal offense. The particular act charged in the indictment and established *534 upon the trial was that the defendant was operating a dart game and this, the state contends, constituted a lottery, bringing it within the prohibition of Article XV, section 4, of the constitution of this state, which provides that:
"Lotteries, and the sale of lottery tickets, for any purpose whatever, are prohibited, and the legislative assembly shall prevent the same by penal laws."
By section 1 of chapter 369, Oregon Laws 1935, the legislature of this state enacted a provision which reads as follows:
"That municipal corporations and counties be and they hereby are empowered to license, limit, regulate, impose a privilege tax or charge upon or prohibit pin ball games, dart games, and other games of like character involving an element of skill."
Pursuant to the authority thus conferred, the city of Marshfield granted to the defendant a license to conduct a dart game and he was operating under that license in the doing of the acts complained of. From this it follows that, if the defendant, in operating a dart game, was conducting a lottery, the statute authorizing the licensing of the game is void and of no effect and a license issued in pursance thereof constitutes no defense to a person charged with conducting a lottery.
Therefore, the question for decision is: Did the acts of the defendant, in operating a dart game in the manner as shown by the testimony in this case, constitute a lottery and thereby come within the prohibition of the constitution, or was it another and different form of gambling against which there is no constitutional prohibition?
The question of what does or does not constitute a lottery has been before this court in numerous cases *535 and the law upon that question is well settled by the decisions of this and other courts.
It is settled that the word "lottery", as used in the constitution of this state, has no technical, legal signification different from the popular one and the word is to be given the meaning generally accepted and in popular use at the time when the constitution was adopted: Quatsoe v. Eggleston,
It is also settled that it is a form or species of unlawful gaming: Ex parte Kameta,
The reason for the distinction between a lottery and the ordinary forms of gambling is the demoralizing effect of a lottery upon the people generally throughout the state. As said in Ex parte Kameta, supra:
"* * * `Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the *536
ignorant and simple.' And Mr. Justice Campbell says: `No other form of gambling operates as extensively in its dealings, or demoralizes so many people.' People v. Reilly,
In Fleming v. Bills,
"* * * a scheme by which a result is reached by some action or means taken, and in which result man's choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished."
In 38 C.J., p. 287, a lottery is defined as any "scheme for the distribution of prizes or things of value by lots or chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize; or as a game of hazard in which small *537 sums of money are ventured for the chance of obtaining a larger value, in money or other articles". It will thus be seen that the three necessary elements of a lottery are the offering of a prize, the awarding of the prize by chance, and the giving of a consideration for an opportunity to win the prize.
A careful consideration of the evidence convinces us that the game being conducted by the defendant was a lottery and prohibited by the constitution of this state and that the legislature had no power to authorize the licensing of such a game.
We shall make no attempt to describe the manner in which the same was played. It is only necessary to say that at the time the act of the legislature in question was passed games of this character must have been common or there would have been no legislation and, hence, the manner in which these games are conducted must have been well understood. From general information, we know that there are many dart games being operated throughout the state and this shows that the manner of their operation is a matter of general information. For that reason, no description of the game is necessary.
The whole evidence shows that the game was played for money or merchandise offered as a prize in consideration of moneys paid by each player of the game and that the result of the game, in so far as the winner is concerned, was wholly a matter of chance and not the result of any skill, knowledge or forethought upon his part and, as such, constituted a lottery within the prohibition of the constitution and that the legislature had no power to enact any law authorizing the licensing of the game. Therefore, section 1 of chapter 369, Oregon Laws 1935, in so far as it authorizes the licensing of dart games, is unconstitutional and void. *538
Finding no error in the record, the judgment of the lower court is affirmed.
BELT, BEAN and BAILEY, JJ., concur.
ROSSMAN and KELLY, JJ., specially concur.
CAMPBELL, C.J., not sitting.
Concurrence Opinion
I concur in the foregoing opinion except in the two parts to which I shall now refer. The majority intimate that the awarding of the prize must be dependent upon pure chance; otherwise the scheme is not a lottery. They declare that if skill plays any part, however small, the scheme is not a lottery. I can not concur in that view of the law.
From 38 C.J., Lotteries, § 5, p. 291, the following is taken:
"The rule generally followed in the United States is that the word `lottery' includes those schemes wherein chance is the dominant factor in determining the result, although it may be affected to some degree by the exercise of skill or judgment; * * *"
From 17 R.C.L., Lotteries, § 10, p. 1223, we quote:
"In the United States, however, by what appears to be the weight of authority at the present day, it is not necessary that this element of chance should be pure chance, but it may be accompanied by an element of calculation or even of certainty."
In support of the statement just made, the editor cites the two decisions which will now be reviewed. In Waite v. PressPublishing Association, 155 Fed. 58 (85 C.C.A. 576, 12 Ann. Cas. 319 (and note), 11 L.R.A. (N.S.) 609 (and note), the court held that a scheme whereby the defendant obtained subscriptions for periodicals by promising to the subscriber who submitted the most accurate estimate of the total vote *539 to be cast for President November 8, 1904, a prize of $10,000, and to the individual making the second closest estimate, $5,000, was a lottery. It so held notwithstanding it pointed out:
"One skilled in national politics and conversant with existing conditions might make a closer estimate than one wholly ignorant."
In Stevens v. Cincinnati Times-Star Co.,
"It is true that one acquainted with the results of the elections of the state in previous years and educated in politics would have some advantage over one ignorant in those respects, yet it must be apparent, even to a casual observer, that the result would depend upon so many uncertain and unascertainable causes that the estimate of the most learned would be, after all, nothing more than a random and undecisive judgment. In the sense above indicated there is an element of skill, possibly certainty, involved; but it is clear that the controlling predominating element is mere chance. It was a chance as to what the total vote would be: it was equally a chance as to what the guesses of the other guessers would be."
For additional decisions to the same effect see the annotations above cited.
In People v. Rehm (Cal. Super.),
"In the contest before us we find that while the outcome could be foreseen in a measure by the exercise of thought, although `fancy' would be a more accurate word, nevertheless thought played so small a part that the controlling force remained chance. So understood, the scheme appeared a lottery, in which one stood a chance of winning $25,000 by the expenditure of $1.00, a half hour's time, and a 3-cent stamp."
From Brooklyn Daily Eagle v. Voorhies, 181 Fed. 579, we quote:
"It has been held in numerous cases, such as Waite v. Press Publishing Association, 155 Fed. 58, 85 C.C.A. 576, 11 L.R.A. (N.S.) 609, Hudelson v. State,
The above quotation taken from Ruling Case Law also citesHorner v. United States,
In Multnomah County Fair Association v. Langley,
"The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game."
The record indicates that in dart games provision is made for a small element of skill. It is questionable, however, whether any dart game is a bona fide contest of skill. Concerning the bona fides of the contest, see Brooklyn Daily Eagle v. Voorhies, supra. The provision for skill, as in many other like schemes, appears to be a mere subterfuge to give an appearance of lawfulness and to conceal its real nature. The record undoubtedly shows that the predominating factor in the award of prizes in dart games is chance. The facts are all before us. There is no controversy concerning the nature of the game. Such being true, whether or not the scheme is a lottery is purely a question of law. That being so, a conclusion is justified that the scheme is a lottery.
I dissent from the portions of the decision of the majority at variance with the above. In all other parts I agree.
KELLY, J., concurs. *542
