Commonwealth v. Rivers
| Decision Date | 03 November 1948 |
| Citation | 323 Mass. 379,82 N.E.2d 216 |
| Parties | COMMONWEALTH v. RIVERS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Worcester County; E. E. Hobson, District Judge.
Albert Rivers was found guilty of being concerned in the setting up of a lottery or other gaming device for money or other property of value. Execution of sentence was suspended, and case was reported.
Judgment affirmed.
Before QUA, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.
J. F. Baxter, Asst. Dist. Atty., and A. B. Cenedella, Dist. Atty., both of Worcester, for the Commonwealth.
J. F. Killeen, of Worcester, and J. S. Derham, of Northampton, for defendant.
On May 5, 1947, a complaint was received and sworn to in the Central District Court of Worcester charging that the defendant on May 3 at Jefferson in Worcester County On appeal to the Superior Court he waived his right to a trial by jury. The case was heard upon a case stated by a judge of a District Court sitting in the Superior Court. The defendant presented a motion for a finding of not guilty as matter of law which was denied subject to his exception. He was then found guilty and sentenced to pay a fine of $50, but execution of the sentence was suspended and the case was reported to this court with the stipulation that ‘if the verdict of guilty is warranted by law, the defendant shall stand convicted, if the verdict of guilty is not warranted by law, it shall be set aside and the defendant discharged.’
The facts may be summarized as follows. State police officers on May 3, 1947, went to the bowling alley and pool room owned and operated by the defendant in Jefferson and found there a console type, electrically operated slot machine. Although the defendant was not the owner of the machine, it had been placed in his premises with his knowledge and consent. On the fact of the machine were the words ‘number of coins played,’ under which were five columns of figures headed by the words ‘one,’ ‘two,’ ‘three,’ ‘four,’ and ‘five.’ When from one to five nickels were inserted in the slot at the top of the machine and a lever was turned to the right, the face of the machine was illuminated, and three separate, parallel drums, bearing symbols of cherries, oranges, plums, lemons, bells, and bars, were caused to rotate rapidly. ‘Free games,’ from one to five hundred depending upon the combinations of symbols resulting from the play, were registered in spaces beneath the five columns of figures upon the face of the machine. ‘Free games' so registered could be either ‘played off’ by turning the lever to the right, or cancelled by pressure upon a button located at the rear of the machine. Cancellations of ‘free games' in this manner caused a meter located in the interior of the machine to record the number of ‘free games' cancelled. The ‘playing off’ of ‘free games' did not change the reading upon the meter. In the interior of the machine was a device whereby the machine could be converted into a slot machine which would return to a player five cent coins depending in number upon the combination of symbols resulting from the play. One of the police officers inserted a five cent coin into the machine, turned the lever to the right, and received two ‘free games,’ one of which he ‘played off.’ The other he cancelled. The machine was not regulated so that it might cause to be returned any five cent coins to the officer. No money or other thing of value was given to the officer playing the machine other than the right to play the machine again free of charge by turning the lever to the right. It is provided in the case stated that ‘the court shall be entitled to draw all reasonable inferences from the facts as stated.’ See G.L.(Ter.Ed.) c. 231, § 126.
General Laws (Ter.Ed.) c. 271, § 7, provides: ‘Whoever sets up or promotes a lottery for money or other property of value, or by way of lottery disposes of any property of value, or under the pretext of a sale, gift or delivery of other property or of any right, privilege or thing whatever disposes of or offers or attempts to dispose of any property with intent to make the disposal thereof dependent upon or connected with chance by lot, dice, numbers, game, hazard or other gambling device, whereby such chance or device is made an additional inducement to the disposal or sale of said property, and whoever aids either by printing or writing, or is in any way concerned, in the setting up, managing or drawing of such lottery, or in such disposal or offer or attempt to dispose of property by such chance or device, shall be punished by a fine of not more than two thousand dollars or by imprisonment for not more than one year.’ The complaint to the form of which no objection was taken, sufficiently charges violation of this statute. Commonwealth v. McClintock, 257 Mass. 431, 434, 154 N.E. 264.
The essential elements of a lottery are the payment of a price and the possibility of winning a prize, depending upon hazard or chance. Commonwealth v. Wright, 137 Mass. 250, 251,50 Am.Rep. 306;Commonwealth v. McLaughlin, 307 Mass. 230, 232, 29 N.E.2d 821;Commonwealth v. Lake, 317 Mass. 264, 267, 57 N.E.2d 923;Commonwealth v. Wolbarst, 319 Mass. 291, 292, 65 N.E.2d 552. In the present case the five cent piece put into the machine was the price and the game is purely one of chance. Commonwealth v. Bowman, 267 Ky. 602, 102 S.W.2d 382;State ex rel. Dussault v. Kilburn, 111 Mont. 400, 109 P.2d 1113, 135 A.L.R. 99;State v. Coats, 158 Or. 122, 74 P.2d 1102. The decisive issue is whether the ‘free games' function of the machine constitutes a prize or, in the language of the statute, ‘property of value.’ That issue does not appear to have been decided heretofore by this court, but in many cases where the same issue has been presented in other jurisdictions it has been held that the free game is an ‘other valuable thing,’ People v. One Pinball Machine, 316 Ill.App. 161, 44 N.E.2d 950, 955, City of Milwaukee v. Burns, 225 Wis. 296, 274 N.W. 273; is ‘a thing of value,’ State v. Wiley, 232 Iowz 443, 3 N.W.2d 620, 623,State v. Baitler, 131 Me. 285, 161 A. 671,Oatman v. Port Huron Chief of Police, 310 Mich. 57, 16 N.W.2d 665,Giomi v. Chase, 47 N.M. 22, 132 P.2d 715,Colbert v. Superior Confection Co., 154 Okl. 28, 6 P.2d 791,Alexander v. Hunnicutt, 196 S.C. 364, 13 S.E.2d 630,Painter v. State, 163 Tenn. 627, 45 S.W.2d 46, 81 A.L.R. 173,State v. Langford, Tex.Civ.App., 144 S.W.2d 448; is ‘of value,’ Harvie v. Heise, 150 S.C. 277, 148 S.E. 66; is ‘representative of value,’ Thamart v. Moline, 66 Idaho 110, 156 P.2d 187; is a ‘valuable thing,’ Jenner v. State, 173 Ga. 86, 159 S.E. 564,Hunter v. Mayor and Council of Township of Teaneck, 128 N.J.L. 164, 170, 24 A.2d 553; ‘represent[s] some value and constitute[s] property,’ Giomi v. Chase, 47 N.M. 22, 27,...
To continue reading
Request your trial