Territory Hawai`i v. Surety

• Decision Date: 04 April 1952
• Docket Number: NO. 2800.,2800.
• Citation: 39 Haw. 332
• Parties: TERRITORY OF HAWAII v. MITCHELL SUR.
• Court: Hawaii Supreme Court

39 Haw. 332

TERRITORY OF HAWAII

v.MITCHELL SUR.

NO. 2800.

Supreme Court of the Territory of Hawai‘i.

Argued February 20, 1952.

Decided April 4, 1952.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

Section 55 of the Organic Act designates lotteries mala prohibita and statutes prohibiting and defining lotteries are interpreted with a view to enforcing that policy, although being penal their terms should receive strict construction and their scope limited within their intent and meaning as so construed. In a betting scheme wherein the bettor attempts to choose a certain number of winning athletic teams, the amount of winnings being dependent upon the amount of consideration paid, the number of winning teams selected and the odds established by the operator, the element of chance predominates over skill in the method of wagering. Such a scheme, containing the elements of prize, consideration and chance, though the outcome of the game itself may often be dependent upon the skill of the individual participants, constitutes a lottery within the provisions of section 11340, Revised Laws of Hawaii 1945.G. Nakamura ( Fukushima & Morita on opening brief, Fukushima & Nakamura on reply brief) for plaintiff in error.

A. R. Hawkins, Public Prosecutor (also on the brief), for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY TOWSE, C. J.

The defendant was convicted of assisting in maintaining and conducting a lottery in violation of section 11341 of Revised Laws of Hawaii 1945: “Every person who contrives, prepares, sets up, draws, maintains or conducts, or assists in maintaining or conducting any lottery is guilty of a misdemeanor.” A lottery is defined as “* * * any scheme for the disposal or distribution of property by chance among persons who have paid or promised to pay any valuable consideration for the chance of obtaining the property, or a portion of it, or for any share or any interest in the property upon any agreement, understanding or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, che fa, pakapio, gift enterprise or by whatever name the same may be known.” (R. L. H. 1945, § 11340.)

The five assignments of error are consolidated into two issues: first, whether the element of chance necessary to constitute a lottery is present in the instant scheme; second, whether the admission in evidence of a newspaper account as proof that football games were played on a specific date constituted error.

The method of conducting the alleged lottery consisted of the defendant delivering to the operator of the scheme some six or seven hundred ticket stubs 3 1/2? x 6? in size, on one side of which was printed: “SATURDAY, OCT. 30, 1948,” and the names of fifty collegiate football teams scheduled to play on that date selected by the operator from various geographical sections of the United States. The condition: “Must be in Friday, Oct. 29,” established the closing date for deposit of the wagers and ticket stubs with the operator.

On the reverse side was printed:

+--------------------------------+
                ¦“TEST YOUR SKILL                ¦
                +--------------------------------¦
                ¦“For Amusement Only             ¦
                +--------------------------------¦
                ¦“Pick 10 Winners    ¦11 Points  ¦
                +--------------------+-----------¦
                ¦“Pick 13 Winners    ¦16 Points  ¦
                +--------------------+-----------¦
                ¦“Pick 15 Winners    ¦21 Points  ¦
                +--------------------+-----------¦
                ¦“Pick 20 Winners    ¦51 Points  ¦
                +--------------------+-----------¦
                ¦“Pick 25 Winners    ¦101 Points ¦
                +--------------------------------¦
                ¦“ALL TEAMS MUST WIN • TIES LOSE”¦
                +--------------------------------+
                

The operator established the winner-point pay-off odds and the conditions “ALL TEAMS MUST WIN” and “TIES LOSE.” References to the testing of the bettor's skill and limitation of the scheme to amusement are immaterial declarations of the operator. The tickets were perforated in identical halves. The upper half was retained by the bettor and the bottom half was deposited with the operator, both portions bearing corresponding numbers for identification. The defendant's participation in the scheme was as a collector of the stubs from the bettors. Upon delivering them to the operator he stated that: “They were to be used as part of a football pool.”

Participation in the scheme consisted of the bettor indicating his choice of the winning teams upon both portions of the ticket. The method of selection was aptly described by a witness: “As you look at the ticket if you think that the team would beat the other team, you mark it.” The bettor had the option of choosing any 10, 13, 15, 20 or 25 winning teams upon the odds set for each group, and wagering any amount thereon which he desired in excess of one dollar by indicating the winners and the group selected upon both portions of the ticket.

To win, the bettor was required to have correctly chosen all of the winning teams of the group indicated. Choice of a losing or tie team resulted in loss of the wager. The pay-off was dependent upon the amount wagered and the number of winners selected in accordance with the winner-point odds established by the operator; as for example, for each dollar wagered, in the lowest and highest odds of the winner-point groups here offered, a choice of ten winning teams entitled the bettor to 11 points ($11), a choice of twenty-five winning teams to 101 points ($101).

The first assignment presents two questions: first, whether the element of chance necessary to constitute a lottery as defined in section 11340 of Revised Laws of Hawaii 1945 is present; second, if chance is present, whether it predominates over skill.

The defendant's contention is that, while the element of chance may affect or determine the outcome of a football contest, nevertheless, as in horse racing and certain other contests, the result is predominantly dependent not upon chance but upon the skill of the players themselves; and that the statutory terms “scheme * * * by chance” apply to the element of chance in the game, race, or contest itself and not upon the chances or possibilities of winning or losing the amount wagered. Authorities cited in support of this principle reason that the method of wagering does not constitute the scheme a mere game of chance since the bettor exercises his reason, judgment and discretion in choosing the particular horse, team or individual contestant to win; and that football games, as horse, foot, or boat races, are therefore games or contests dominantly of skill and not chance. It is here contended, for example, that the winner in a horse race is not determined by chance alone, as the condition, speed and endurance of a particular entry and the skill of the rider are factors affecting the outcome.

The Territory, on the other hand, contends that the element of chance applies to the method of wagering, the means used in choosing a winner, and the odds established; all of which determine the bettor's potential of winning or losing the wager placed on the outcome. In substance, that as in most gambling games or schemes in which a bettor chances a win or loss to the exclusion of skill, the element of chance controls these factors and determines the winner or loser of the wager itself.

Lotteries are prohibited by constitutional or statutory provisions in most States. Federal legislation prohibits the use of the mails for the distribution of lottery tickets and related matter. (18 U. S. C., § 1302.) Section 55 of the Organic Act provides in part: “* * * nor shall any lottery or sale of lottery tickets be allowed * * *.” The latter constitutes an express limitation upon our legislative power and designates lotteries mala prohibita. Legislation governing...