Commonwealth v. Rivers

• Decision Date: 03 November 1948
• Citation: 323 Mass. 379,82 N.E.2d 216
• Parties: COMMONWEALTH v. ALBERT RIVERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 379

82 N.E.2d 216

COMMONWEALTH v. ALBERT RIVERS.

Supreme Judicial Court of Massachusetts, Worcester.

November 3, 1948

September 27, 1948.

Present: QUA, C.

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

Lottery. Words "Property of value.

"

Maintenance of a machine whereby, upon the insertion of a coin and the turning of a lever, the operator became entitled to "free games," from one to five hundred depending upon combinations of symbols resulting by chance from the play was a promoting of a lottery in violation of G. L.

(Ter. Ed.) c. 271 Section 7: the "free games" function of the machine constituted a prize, or, under the statute, "property of value."

COMPLAINT, received and sworn to in the Central District Court of Worcester on May 5, 1947.

On appeal to the Superior Court, the case was heard by Hobson, J., a judge of a District Court sitting under statutory authority.

J. F. Killeen, (J.

S. Derham with him,) for the defendant.

J. F. Baxter, Assistant District Attorney, (A.

B. Cenedella, District Attorney, with him,) for the Commonwealth.

DOLAN, J. 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 "was concerned in the setting up of a lottery or other gaming device for money or other property of value. G.L.c. 271, Section 7." 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 face 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, Section 126.

General Laws (Ter. Ed.) c. 271, Section 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.

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. Commonwealth v. McLaughlin, 307 Mass. 230, 232. Commonwealth v. Lake, 317 Mass. 264 , 267. Commonwealth v. Wolbarst, 319 Mass. 291 , 292. 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. State v. Kilburn, 111 Mont. 400. State v. Coats, 158 Ore. 122. 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, Milwaukee v. Burns,

225 Wis. 296; is "a thing of value," State v. Wiley, 232 Iowa 443, State v. Baitler, 131 Maine, 285, Oatman v. Port Huron Chief of Police, 310 Mich. 57, Giomi v. Chase, 47 N. M. 22, Colbert v. Superior Confection Co. 154 Okla. 28, Alexander v. Hunnicutt, 196 S.C. 364, Painter v. State, 163 Tenn. 627, State v. Langford (Tex. Civ. App.) 144 S.W.2d 448; is "of value," Harvie v. Heise, 150 S.C. 277; is "representative of value," Thamart v. Moline, 66 Idaho, 110; is a "valuable thing," Jenner v. State, 173 Ga. 86, Hunter v. Mayor & Council of Teaneck, 128 N. J. L. 164, 170; "represent[s]...