Commonwealth v. Wall

• Decision Date: 02 July 1936
• Citation: 3 N.E.2d 28,295 Mass. 70
• 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.

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 to how ‘ Bank Night’ was run. The person called was not present. Registration books were kept in the lobby and in the box office. Any one except children could register. There were signs indicating that registration was free and that the purchase of a ticket to the theatre was not a prerequisite.

Evidence by and in behalf of the defendant in part tended to show the following: On December 18 the defendant announced that it cost nothing to play the game or to register, that the name of the winner would be announced outside and that if he were standing on the outside he might walk down and collect the prize.‘ He didn't say how long a time would be given for any one outside the theatre to claim the prize.’ He usually waited four or five minutes for the person before putting on the next picture. A witness who testified that they allowed five minutes for the name to be called also testified that he left the front of the theatre after the name was called, and as he reached the back the lights went out. A ‘ trailer’ exhibited on the screen indicated that the winner must appear ‘ within a reasonable time.’ On December 18 the usher announced the name outside in a loud voice. There were two hundred people crowded in the small lobby and three or four hundred on the sidewalk. They would have come in if they could. The theatre was packed inside. ‘ Bank Night’ has very much increased the attendance at the theatre. In six weeks nobody won a prize.

We agree with the defendant that the essence of a lottery is a chance for a prize for a price. Commonwealth v Wright, 137 Mass. 250, 50 Am.Rep. 306; Commonwealth v. Sullivan, 146 Mass. 142, 15 N.E. 491; Commonwealth v. McClintock, 257 Mass. 431, 154 N.E. 264; Commonwealth v. Ward, 281 Mass. 119, 183 N.E. 271; Commonwealth v. O'Connell (Mass.) 200 N.E. 269; State v. Clarke, 33 N.H. 329, 335,66 Am.Dec. 723; Post Publishing Co. v. Murray (C.C.A.) 230 F. 773. The words used in Commonwealth v. Mackay, 177 Mass. 345, 58 N.E. 1027, were not intended as a complete definition. One may give away his money by chance, and if the winner pays no price, there is no lottery. ‘ Price’ in this connection means something of value and not the formal or technical consideration which would be sufficient to support a contract. Yellow-Stone Kit v. State, 88 Ala. 196, 7 So. 338,7 L.R.A. 599, 16 Am.St.Rep. 38; Hull v. Ruggles, 56 N.Y. 424, 427; Chancy Park Land Co. v. Hart, 104 Iowa, 592, 595, 73 N.W. 1059. On the other hand, a game does not cease to be a lottery because some, or even many, of the players are admitted to play free, so long as others continue to pay for their chances. Glover v. Malloska, 238 Mich. 216, 219, 213 N.W. 107, 52 A.L.R. 77; State v. Eames (N.H) 183 A. 590, 592. So here the test is not whether it was possible to win without paying for admission to the theatre. The test is whether that group who did pay for admission were paying in part for the chance of a prize. The jury could disregard...