State v. SternState v. Stern
- Reporters:
- ,
- Before:
- Holt
Defendant, convicted of the offense of advertising a lottery on the 18th day of February, 1937, appeals.
The facts were stipulated and a jury waived, the charge being a misdemeanor. For a condensed statement of the facts material for a decision, this may suffice: Defendant is the principal owner and manager of a Minnesota corporation which was employed by Affiliated Distributors, an Iowa corporation, as agent for Affiliated Enterprises, a Colorado corporation, to solicit contracts from moving picture theatres to use a purported copyrighted plan called “bank night” or “bank nite” by which a drawing was had on a certain night each week, upon the stage of the theatre, for a cash prize. Defendant in behalf of his corporation negotiated such a contract for the Colorado corporation with the owners of Dale Theatre, St. Paul, Minnesota, which remained in effect from August, 1935, until after the date upon which the offense was charged. The Dale Theatre owners were to pay $7.50 a week to the Colorado corporation for the privilege of operating bank night. The theatre was to use for that purpose only such “cards, posters, register and record books, film trailers and other accessories” as should be furnished by the Colorado corporation for staging the weekly feature known as bank night. Indorsed on the contract were instructions which the theatre must strictly follow, or its cancellation would result. The here important features of the instructions are that, at least two weeks before the first bank night opens a table or desk for the register book is to be placed near the box office, over which is to be hung a large sign reading, “Register Here to Get that Free $...... Bank Account at (name of Bank).” Every person is permitted to register therein without price. The doorman or usher is to call
The assignment of error is that the facts stipulated are insufficient to sustain the findings of guilt of the offense charged.
The indictment charges defendant with advertising a lottery, a misdemeanor denounced by
“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 it shall be called a lottery, raffle, gift enterprise, or by any other name, and is hereby declared unlawful and a public nuisance.”
The punishment for contriving, proposing, or drawing a lottery or assisting therein is imprisonment in the state prison for not more than two years, or by fine of not more than $1,000, or by both. There can be no doubt that the bank night operated by the owners of the Dale Theatre pursuant to the film trailer, the last week in December, 1936, was a lottery and a violation of
However, defendant had nothing to do with the film trailer which the owners of the Dale Theatre exhibited the last week in December, 1936, nor with the registration cards furnished matinee ticket purchasers on February 18, 1937, whereby they became participants in the bank night of that evening. The use of either was cause for
The next question is: Was the bank night, if carried out strictly according to the contract defendant negotiated, a lottery? Our constitution bars lotteries.
Whether a consideration is given for the chance of the prize is a question of fact. Where one who purchases an admission ticket for a bank night obtains free another ticket to participate in the chance for the prize, the court affirmed a conviction of the operators of the theatre for maintaining a lottery. People v. Miller, 271 N. Y. 44, 2 N. E. (2d) 38. The case of Commonwealth v. Wall (Mass.) 3 N. E. (2d) 28, 30, is cited as sustaining the position that bank night conducted according to the instructions of this contract is not a lottery; but we think that decision justifies a holding that the scheme devised may be found a lottery if facts appear from which a jury may find that a valuable consideration was given by those who obtained a chance for the prize. The court says the jury “could take a realistic view of the situation. They were not obliged to believe that all the ingenious devices designed to legalize this particular game of chance were fully effective in practical operation.
But even were bank night conducted in strict conformity with the contract negotiated by defendant, a scheme that in practice developed into a lottery, defendant was not charged with contriv
“Every person who shall sell, give, or in any way whatever furnish or transfer to or for another a ticket, chance, share, or interest, or any paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest, in or dependent upon the event of a lottery, to be drawn within or without the state; or who, by writing, printing, circular, or letter, or in any other way, shall advertise or publish an account of a lottery, in or out of the state, stating how, when, or where the same is to be or has been drawn, or what are the prizes therein, or any of them, or the price of a ticket, or any share or interest therein, or where or how it may be obtained—shall be guilty of a misdemeanor.”
It is obvious that this section was intended to cover whatever was not included in
Judgment reversed.
Julius J. Olson, Justice (dissenting).
With most of what Mr. Justice Holt has written I am in accord. But there are some matters to which I cannot agree for reasons now to be stated.
Here, as in practically all of this type of cases, there is no dispute that at least two of the elements involved in a lottery appear, chance and prize. The third element, price (or consideration), is the point of cleavage. That is why it is impossible to harmonize the decisions bearing upon this subject. Defendant‘s argument has for its foundation the claim that because registration was free to any
It seems clear to me that “bank night” cannot by any stretch of the imagination be called a donation or a gratuitous distribution of one‘s property. Theatre owners are not generally known as “benevolent philanthropists.” What the owners of the Dale Theatre sought and what defendant sold them was not a scheme to fill the lobby or the adjacent sidewalks, but rather and only to fill this theatre with paying patrons. They were employing this method to increase attendance at their theatres in order to increase profits. And that this is the result hoped for and sought to be accomplished is what they bought and defendant sold, otherwise why would they be paying their good money for this service?
“The life of the law has not been logic; it has been experience.” Holmes, The Common Law, p. 1.
How can we as judges “pretend ignorance of what all mankind knows?” Robinson v. State, 185 Ind. 119, 125, 113 N. E. 306, 308. What member of this court, or anyone else for that matter, can say that bank night is not the night when one “must go to the movies?” What town, large or small, having a moving picture show, is not jammed to the doors on such occasions? And if the purse has increased from time to time because the “lucky” number has in the past not found any claimant, does it not follow that as each succeeding bank night approaches the crowding of the show place and the areas adjacent thereto has become a common nuisance to other citizens whose craze for getting something for little or nothing has not led them astray?
Constitutional and statutory inhibition, to which should be added plain common sense as well, combine against lotteries and gambling in all forms. Looking at this matter realistically, we cannot close our eyes to the evil results that have flowed from the bank night scheme.
“It cannot alter the fact that the operator may have given free chances to some without the purchase of tickets; even so, the lottery scheme as to a gift enterprise was present to all the rest, and this fact did not prevent it from being a lottery under the law of Georgia.”
The court then proceeds to discuss State v. Danz, 140 Wash. 546, 250 P. 37, and quotes as follows (48 A. L. R. 1109):
“The distribution by a theater of produce contributed by merchants for advertising purposes as an additional attraction one night each week, according to numbers designated by chance on tickets furnished with the tickets of admission, may be found to be within the prohibition of a statute defining a lottery as a scheme for the distribution of money or property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, and it is immaterial that free tickets to the drawing are offered to persons not purchasing theater tickets.”
In Commonwealth v. Wall (Mass.) 3 N. E. (2d) 28, 30, the court said:
“A game does not cease to be a lottery because some, or even many, of the players are admitted to play free, so long as others continue to pay for their chances.”
In State v. Danz, 140 Wash. 546, 548, 549, 250 P. 37, 38, 48 A. L. R. 1109, the court said:
“If in the flourishing days of the Louisiana lottery its management had advertised that it would give a free ticket to the president of every bank in the city of New Orleans, that would not have changed the scheme from a lottery, whether or not any one or all of such free tickets were accepted.”
“In short, we think it does not materially affect the scheme that there be a possibility that some one might get a prize who had not paid for a ticket. It is so plain as to be evident that appellant‘s purpose was, from no angle and in no sense, to induce people not to buy tickets to the show, but to rely on the fact that their names were on his book. Such proposition would be entirely opposed to his purpose and plan, which was—as frankly admitted by him—to increase the patronage of his show. No sane man would believe for a moment that appellant would continue for an extended period, as appears here, to operate a scheme the result of which would or could lose him money.” (Italics supplied.)
And in Affiliated Enterprises, Inc. v. Gantz (C. C. A.) 86 F. (2d) 597, 599, the court in speaking of the bank night plan or system as portrayed in its copyrighted sheets said: “This seems to be a subterfuge to escape the stigma of being a lottery.” And further, “how can it be maintained that the supposed evasion [attempted to be afforded by the system] converted a lottery or gambling device into a mere altruistic opportunity and occasion to bestow a gift.”
The evils of all lottery schemes have long been recognized. As long ago as Phalen v. Virginia, 8 How. 163, 168, 12 L. ed. 1030, 1033, the court said:
“The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experi
ence 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 ignorant and simple.”
And in 38 C. J. p. 305 [§ 35], it is said:
“Statutes prohibiting or regulating lotteries should be construed with a view to remedying the mischief intended to be prevented, and to suppress all evasions for the continuance of the mischief. Therefore, where the question presented is one of enforcing criminal re- * * * sponsibility, the courts will ordinarily construe liberally the provisions relating to lotteries so as to include all schemes which appeal to the gambling propensities of men.”
An interesting and instructive article, (Hensley) “The Legality of Theater Bank Nights,” is found in 1 The American Lawyer (1937) p. 5. The cases bearing upon this subject are there adequately analyzed, and the conclusion reached by the writer of that article appeals to me as being sound. I quote (p. 13):
“We must not lose sight of the fact that the important factor in the determination of the character of such a scheme as that now under consideration is the substance; the name given to the process used to effectuate the object is of no consequence. It is idle to maintain that statutory and constitutional inhibitions meant to prohibit names and not things. Whatever it may be christened, or however well it may be guarded or masqueraded by cunningly devised conditions or deceptive screens, it is, under the law, what dispassionate and pragmatic analysis reveals it to be; and theoretical applications when at war with practical functioning must be ignored and discarded. If ‘bank night’ differs from ordinary lotteries, the difference lies chiefly in the fact that it is more ingeniously devised to disingenuously gull gullible courts. Many courts have looked beyond the mere factitious form of the transaction, and sought out and suppressed the obnoxious substance itself. It has been aptly
said that ‘the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief.’ Magdalen College Case, 11 Coke 71 b, 77 Eng. Reports 1235, 1242.”
Defendant was charged with “wrongfully, unlawfully and wilfully by writing, printing and the distribution of films, and in other manner did advertise and publish an account of a lottery to take place at the Dale Theatre in St. Paul” on February 18, 1937. From July 30, 1935, until and including February 18, 1937, the Dale Theatre paid to defendant (or his solely controlled domestic corporation) $7.50 per week for using the films, trailers, and other paraphernalia furnished by his principal. If, as I think, “bank night” is a lottery (albeit artfully disguised), then the conclusion must follow that defendant was properly found guilty and that the judgment below should be affirmed.
Stone, Justice (dissenting).
I also dissent, but do not think that it helps consideration to characterize “bank nite” as a scheme to evade the lottery laws. Evasion is entirely legitimate if of the kind which, in operation, falls short of violation of law. That, of course, is the purpose of bank night. I think it fails.
The plan has two classes of beneficiaries. The first consists of those who do not buy admission tickets, but wait outside on the chance, which in many cases everyone knows, is exceedingly remote, that an outsider, even though the winner on a given night, may get inside soon enough successfully to claim the prize. The second class embraces those who buy tickets and so pay, not only for admission to the theatre, but also for the advantage over outsiders admission offers to the insider who wins the draw.
The latter class, I submit, “have paid,” in the language of the anti-lottery statute, “a valuable consideration for the chance” which is theirs and enhanced by reason of their payment of the consideration. The obvious purpose of the scheme is in that very manner to induce attendance and to discourage nonattendance inside the theatre. So the conclusion is inescapable to me that the scheme
Peterson, Justice (dissenting).
I concur in the dissent of Mr. Justice Stone.