Commonwealth v. Payne

• Decision Date: 31 October 1940
• Citation: 29 N.E.2d 709,307 Mass. 56
• Parties: COMMONWEALTH v. PAYNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 56

29 N.E.2d 709

COMMONWEALTH

v.PAYNE.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 31, 1940.

Exceptions from Superior Court, Berkshire County; Hammond, Judge.

Bernard Payne was convicted of setting up and promoting a lottery, and he brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

H. R. Goewey, Asst. Dist. Atty., of Pittsfield, for the Commonwealth.

H. A. Glovsky, of North Adams, for defendant.

QUA, Justice.

The defendant has been found guilty at the trial together of three complaints against him for setting up and promoting a lottery. G.L.(Ter.Ed.) c. 271, § 7. He excepts to the denial of his motion for a directed verdict in his favor in each case, to the refusal of a requested ruling, and to parts of the charge.

There was sufficient evidence to warrant conviction.

The defendant, manager of a moving picture theatre in North Adams, on the three nights to which the complaints related conducted at the theatre in addition to the regular program a game ‘similar to Beano or Bingo’ and called ‘Lucky Strike.’ The game need not be described in great detail. Each person purchasing an admission ticket to the theatre was also given a yellow card ‘similar to a Beano or Bingo card’ and containing five rows of numbers with five numbers in a row. The patron was to punch out numbers on his card corresponding to the numbers at which the arrow should stop on the ‘number wheel’ shown on the screen. Those who could thus punch out five numbers ‘down,’ ‘across,’ or ‘diagonally’ won a chance to participate in money prizes, the amount of which depended in part upon the sum in the ‘bank’ and in part upon the places where the ‘dial’ stopped on the ‘pay-off wheel,’ also shown on the screen. Thus the winners and the amounts of their winnings were dependent upon the rotation of these so-called wheels. The defendant concedes that the game involved prizes determined by chance, but contends that there was no evidence to establish the remaining necessary element in a lottery, to wit: ‘The payment of a price for the chance. See Commonwealth v. Wall, 295 Mass. 70, 72, 3 N.E.2d 28, and cases cited.

Bearing upon this contention there was evidence that a sign about six feet by four feet in size placed in the lobby of the theatre read, ‘For fun and profit-Play Lucky Strike-You play-We pay. Saturday night, 8:55 P. M.’ Evidence introduced by the defendant tended to show that on Saturday nights, when ‘Lucky Strike’ was played, the show was the same as on Thursday and Friday nights of the same week; that the admission fee was the same on Saturday nights as on other nights; that there was ‘no more than a normal exodus of the patrons' immediately before and after the game was played; that there was a diminution of patronage on the successive Saturday nights mentioned in the complaints; and that some of the patrons left their yellow cards at the box office or threw them away. It was admitted, however, that no one could secure a yellow card or become entitled to play the game unless he purchased a ticket to the theater.

Obviously the purpose of the defendant in setting up the game was to induce persons...