Commonwealth v. Wall

• Decision Date: 02 July 1936
• Parties: COMMONWEALTH v. WALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 70
3 N.E.2d 28

COMMONWEALTH
v.
WALL.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1936.

Exceptions from Superior Court, Middlesex County; Dowd, Judge.

James Wall was charged by a complaint and convicted of being concerned in setting up a lottery for money in violation of G.L.(Ter.Ed.) c. 271, § 7, and he brings exceptions.

Exceptions sustained.

[3 N.E.2d 29]

F. G. Volpe, Sp. Asst. Dist. Atty., of Boston, for the commonwealth.

R. G. Dodge, of Boston, for defendant.

QUA, Justice.

The defendant, manager of a moving picture theatre in Medford, was convicted of being concerned in setting up a lottery for money on December 18, 1935, in violation of G.L.(Ter.Ed.) c. 271, § 7. None of the other cognate offenses described in that section was charged. The principal question is whether the jury were warranted in finding that the plan or scheme for increasing patronage known as ‘Bank Night,’ as operated by the defendant, was a lottery.

Under this plan the theatre would deposit each week the sum of $35 in a bank. Registration books were kept by the theatre wherein were recorded on numbered lines the names of those eligible to receive this deposit. Every Wednesday night during the performance at the theatre and in the presence of the audience one of the names so recorded was drawn by lot and publicly announced. The person whose name was called was entitled to come forward and claim the deposit. If he did not appear, the deposit remained in the bank to be added to the amount available for the winner of the next week's drawing.

The Commonwealth introduced the evidence of police officers who purchased tickets and visited the theatre on December 11 and on December 18, which were successive ‘bank nights.’ On December 11 the defendant stated that anybody could register, that it was not necessary for anybody to attend the theatre in order to win a prize, but eventually he hoped that everyone would come. The name of one Smith having been drawn, the defendant called his number three or four times ‘and also called out in the lobby of the theatre.’ Smith did not answer, whereupon the defendant said that $35 would be added to the amount already deposited to be drawn the next week. On December 18 the defendant three or four times called the name corresponding to the number drawn, ‘and it was called on the outside.’ He did not say it was a free drawing or that it was not necessary for anybody to purchase a ticket or to be in the theatre. He made no announcement as...