Commonwealth v. Heffner

• Citation: 304 Mass. 521,24 N.E.2d 508
• Parties: COMMONWEALTH v. ROY E. HEFFNER, JUNIOR.
• Decision Date: 27 December 1939
• Court: United States State Supreme Judicial Court of Massachusetts

304 Mass. 521

24 N.E.2d 508

COMMONWEALTH v. ROY E. HEFFNER, JUNIOR.

Supreme Judicial Court of Massachusetts, Plymouth.

December 27, 1939

October 2, 1939.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

Lottery. Theatre.

Evidence Materiality. Practice, Criminal, Charge to jury, Requests rulings and instructions.

A scheme called "bank night," by which prizes were given away in a theatre on a certain evening to persons drawn by lot from previous registrants who might or might not have paid for admission on that evening, the prize winners being announced both within and outside the theatre, could be found to be a lottery under G.L. (Ter. Ed.) c. 271, Section 7 where the evidence warranted a finding that some of those who paid for admission on that evening paid their money in part for a better chance at the prizes.

At the trial of a complaint for promoting a lottery by means of a "bank night" in a theatre, testimony that large numbers of people in the vicinity "knew bank night was free" properly was excluded as immaterial.

Quotation by a trial judge to the jury from opinions of this court is proper if applied to the case on trial without leaving a false impression as to the jury's duty.

A trial judge who properly stated to the jury at a criminal trial the true test to determine whether the defendant was guilty or not was not required to give in terms requests for rulings seeking to have him exclude from their consideration various false tests.

COMPLAINT, received and sworn to in the Fourth District Court of Plymouth on December 31, 1938.

On appeal to the Superior Court, the complaint was tried before J. M. Hurley J., a district court judge sitting under statutory authority. The judge instructed the jury in part as follows: "One important feature of the plan was the necessity that the person whose name was drawn should appear at once and claim the deposit. A participant inside the theatre would have the advantage of immediate presence, in a place of comfort. He could hear the number and the name read. He could identify himself at once. A participant outside the theatre must wait, in the hope that if his name should be drawn within he would be notified and would hear the call soon enough to get through the crowd, toward the front of the theatre, within the allotted time. The test in this case for you to determine whether or not a price was paid is to determine: Did any of those people who were inside the theatre pay their admission in part for the purpose of being inside and participating in the drawing of that prize? If you are satisfied beyond a reasonable doubt that some of those in attendance -- some of those people in attendance within the theatre that night -- paid their price in part for the purpose of participating in that prize, then your finding should be guilty. . . . The test is: Did some of those people who attended the theatre the night of the drawing, did they pay the price in part for the opportunity of being present and participating in the prize."

The defendant was found guilty and alleged exceptions. G. S. Ryan, for the defendant.

J. R. Wheatley, Assistant District Attorney, for the Commonwealth.

QUA, J. The defendant has been convicted of setting up and promoting a lottery in violation of G.L. (Ter. Ed.) c. 271, Section 7. The lottery consisted in the operation of an advertising scheme called "Bank Night" by which prizes were given away to persons who had previously registered and whose numbers were drawn on a platform in front of the screen in a moving picture theatre at Middleborough of which the defendant was manager.

The general plan of "Bank Night" as operated by the defendant was similar to that described in Commonwealth v. Wall, 295 Mass. 70 , and need not be described in detail here. At the exhibition in the evening of the day specified in the complaint the defendant, inside the theatre, called the name of one Boehme as a prize winner. According to the evidence Boehme was then on a parking lot where "the crowds gathered" outside and in the rear of the theatre. A door man announced Boehme's name from the fire escape, and Boehme came into the theatre without paying for admission and obtained a prize of $100.

There was no error in the refusal to direct a verdict for the defendant. In Commonwealth v. Wall, 295 Mass. 70 , 72-73, we held that the essence of a lottery is "a chance for a prize for a price"; that the price must be something of value and not merely the formal or technical consideration, such as registering one's name or attending at a certain place which might be sufficient consideration to support a contract; that the price "must come from participants in the game in part at least as payments for their chances"; that "the indirect advantage to the theatre of larger attendance is not in itself a price paid by participants"; and that the test whether a "Bank Night" is a lottery "is not whether it was possible to win without paying for admission to the theatre," but is "whether that group who did pay for admission were paying in part for the chance of a prize." Upon evidence outlined in the opinion in that case we held that the jury could find that the crowds which filled the theatre on "Bank Night" "paid to come in partly because they had, or reasonably believed they had, a better chance to win the prize than if they had stayed outside, that they paid their money in part for that better chance, and that the scheme in actual operation was a lottery." We think that the jury...