Commonwealth v. Payne
| Decision Date | 29 October 1940 |
| Citation | 307 Mass. 56,29 N.E.2d 709 |
| Parties | COMMONWEALTH v. BERNARD PAYNE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 17, 1940.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Lottery. Theatre.
Practice, Criminal Charge to jury, Requests, rulings and instructions.
Evidence that the proprietor of a theatre advertised offering purchasers of admission tickets on a certain night an opportunity for a prize whose winner was determined by chance warranted a finding that some at least of the patrons on that night paid money both for an opportunity to see the show and for a chance to win the prize, and warranted a conviction of setting up and promoting a lottery under G. L. (Ter. Ed.) c 271,
Section 7, although the price and the show were the same on that night as on others.
A trial judge who gave full and adequate instructions as to the main issue in a criminal case committed no error in refusing instructions as to possible states of facts upon which the jury could acquit the defendant.
THREE COMPLAINTS received and sworn to in the District Court of Northern Berkshire on June 10 and June 11, 1940.
On appeal to the Superior Court, the complaints were tried before T. J. Hammond, J. The defendant was found guilty and alleged exceptions.
H. A. Glovsky, for the defendant. H. R. Goewey, Assistant District Attorney, for the Commonwealth.
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, Section 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, 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 Evidence introduced by the defendant tended to show that on Saturday nights, when "Lucky Strike" was played, the show was the same as on...
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