Commonwealth v. Lake

• Citation: 317 Mass. 264,57 N.E.2d 923
• Parties: COMMONWEALTH v. GEORGE E. LAKE.
• Decision Date: 29 November 1944
• Court: United States State Supreme Judicial Court of Massachusetts

317 Mass. 264

57 N.E.2d 923

COMMONWEALTH v. GEORGE E. LAKE.

Supreme Judicial Court of Massachusetts, Essex.

November 29, 1944

October 2, 1944.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & SPALDING, JJ.

Lottery. Evidence Experiments.

At a trial for promoting a lottery in violation of G. L. (Ter. Ed.) c. 271,

Section 7, where the substantial issue was whether operating a machine called a "rotary merchandiser" was predominantly a game of skill or one of chance, a witness for the defendant, having been successful during direct examination in obtaining from the machine the prizes which he sought to obtain in a demonstration of it in court, properly might be required during cross-examination to operate the machine under different conditions, which, he objected, were unfavorable to success; the jury were entitled to observe the operation of the machine under all conditions which might exist. A finding that one in charge of a store at Salisbury Beach called

"Sportland" was guilty of promoting a lottery in violation of G. L. (Ter Ed.) c. 271, Section 7, was warranted by evidence that he maintained in the store a certain machine called a "rotary merchandiser" containing assorted prizes which players attempted to obtain by operation of the machine after depositing a coin therein, and that the mechanics of the machine and the game were such that to a great majority of those who actually played the game it was predominantly one of chance. At a trial for promoting a lottery in violation of G. L. (Ter. Ed.) c. 271,

Section 7, there was reversible error where the judge, after he had correctly instructed the jury that they might find the defendant guilty if they should find that the element of chance predominated in a game wherein players, after payments of money, sought to obtain prizes by operating a machine maintained by the defendant in a store, further instructed them in effect that, even though they should find that the element of skill predominated very largely in the game, they nevertheless might find the defendant guilty if they should find that any element of luck, any

"gambler's chance," was an inducement to play the game.

COMPLAINT, received and sworn to in the Second District Court of Essex on September 4, 1943.

Upon appeal to the Superior Court, the case was tried before Cabot, J.

A. Margolis, (C.

F. Leary with him,) for the defendant.

E. F. Cregg, Assistant District Attorney, for the Commonwealth.

QUA, J. The defendant has been found guilty of setting up or promoting a lottery for money or other property of value at Salisbury on September 3, 1943, in violation of G. L. (Ter. Ed.) c. 271 Section 7. He excepts (1) to the admission of certain evidence, (2) to the denial of his motion for a directed verdict in his favor, (3) to the refusal of the judge to give certain requested rulings, and (4) to portions of the charge.

The alleged lottery was carried on by means of machines known as "rotary merchandisers" set up in a store called "Sportland" ^[1] in charge of the defendant. This machine is about four feet high and thirty inches square. The top cover and the upper portions of the four sides are of glass, so that the "playing field" in the upper part of the inside is visible. In the center of the "playing field" is a hole, about five and one half inches in diameter, around which is "a green felt area." Surrounding this is "another area of green felt in the nature of a rim about six inches wide and flat." When the machine is played this rim revolves around the center area "in the manner of a turntable." Upon the green felt areas are assorted prizes, such as cameras, watches, whistles, tape measures, and other objects. When a five cent piece is inserted in a slot the rim or "turntable" slowly revolves with the objects upon it, but the operator can stop it at any point by pressing a button on the outside of the machine. When the rim is stopped in this way, a horizontal arm attached at its inner end to an axis at the rear of the machine automatically swings out across the "playing field." From the outer or free end of this arm is suspended a "finger" the bottom of which, about one inch square, is the "pusher." As the arm swings, the "pusher" travels in an arc at a height of about a quarter of an inch over the surface of the rim and the inner area up to and across the hole in the center. The object of the game is "to have the `pusher' on the horizontal arm push in front of it the desired prize" from the "playing field" into the hole, whence the object is delivered to the player through a chute. The pusher always travels in the same arc.

A police officer testified that he played three of the machines "a couple of times each" and received nothing. Another officer played about forty times and obtained only a steel tape for which he had not been trying. He watched numerous other players, none of whom obtained any prizes. Neither officer had ever before played this type of machine. It appeared that a witness called by the defendant at the previous trial in the District Court had won five cameras in approximately forty plays. The defendant himself testified in the Superior Court that he had noticed that some players were more successful than others. A witness called by the defendant testified that he had been playing this type of machine for over two years; that he had played over two hundred times; and that he had been "rather successful." He then demonstrated upon the machine in court in an effort to win the five cameras that were in it and in forty-two attempts succeeded in obtaining all of them, together with a steel tape for which he was not trying. On cross-examination this witness was permitted to try (unsuccessfully) for small objects when the larger objects were no longer in the machine in spite of his objection that the method of obtaining a small object was "to get a larger one, such as a camera, behind it and help push it out."

1. There was no error in permitting the defendant's witness to operate the machine before the jury under conditions which he regarded as unfavorable to success. The jury were entitled to observe the operation of the machine under all conditions that might exist. They could make proper allowances for unfavorable conditions. See Commonwealth v. Plissner, 295 Mass. 457 , 462-463.

2. There was no error in the refusal to direct a verdict of not guilty. There are three elements in a lottery, (1) the payment of a price for (2) the possibility of winning a prize, depending upon (3) hazard or chance. Commonwealth v. Wall, 295 Mass. 70 , 72. Commonwealth v. Plissner, 295 Mass. 457, 463. In this case the five cent piece put into the slot was the price, and the objects which might be obtained from the machine were prizes, but the defendant contends that the game was one of skill, and that the element of chance was lacking.

The infinite number of "games" devised by the ingenuity of man, whether or not played by...