Grimes v. State
| Decision Date | 18 November 1937 |
| Docket Number | 6 Div. 226 |
| Citation | 235 Ala. 192,178 So. 73 |
| Parties | GRIMES v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 13, 1938
Certiorari to Court of Appeals.
Petition of Cecil B. Grimes for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Grimes v. State, 178 So. 69.
Writ denied.
Foster Rice & Foster, of Tuscaloosa, for petitioner.
A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen for the State.
Peach & Caddell, of Decatur, amici curiae.
The legality of "Bank Nights," at motion-picture theaters, to say nothing of other devices so prevalent at this time, is of such general interest, both to the motion-picture industry and to the public, that this court deems it proper to give a brief but definite statement of the law sustaining the decision of the Court of Appeals now under review.
For a full and clear statement of the plan of operation in the instant case, we refer to the "Statement of Facts" by the Court of Appeals, 178 So. 69.
Our statute (Code 1923, § 4247) declares: "Any person who sets up, carries on, or is concerned in setting up or carrying on any lottery or device of like kind, or any gift enterprises, or any scheme in the nature of a lottery or gift enterprise," is guilty of an offense, and subject to a fine, with cumulative punishment for successive conviction.
This statute is pursuant to a mandate of the State Constitution, first appearing in the Constitution of 1875, and readopted as section 65 of the present Constitution.
The legal definition of a lottery or gift enterprise in the nature of a lottery, denounced by our statute, is fully discussed in Yellow-Stone Kit v. State, 88 Ala. 196, 7 So. 338, 7 L.R.A. 599, 16 Am.St.Rep. 38; Loiseau v. State, 114 Ala. 34, 22 So. 138, 62 Am.St.Rep. 84, and Johnson v. State, 83 Ala. 65, 3 So. 790.
The lust for profit by catering to and commercializing the gambling spirit has given rise to many ingenious devices resulting in very many decisions by the courts dealing with the application of lottery statutes similar to ours.
Since the appearance of bank nights in motion-picture theaters, themselves varying somewhat in detail, numerous cases involving their legality vel non under lottery statutes have given rise to prolonged discussion. The particular plan of operation here involved has been considered by eminent courts quite recently.
For a full review of authorities, English and American, we refer to a series of notes in 109 A.L.R. 709; 103 A.L.R. 866; 57 A.L.R. 424; and 48 A.L.R. 1115.
A special article on "The Legality of Theater Bank Nights" by William N. Hensley, appearing in "The American Lawyer" (published by the American Law Book Company) vol. 1, No. 1, September, 1937, reviews and discusses with much force and reason the authorities to a very recent date.
Without undue elaboration we give the following expression of our views, as best supported by reason and the trend of the best considered cases:
Without dispute a lottery has three elements: (1) A prize, (2) awarded by chance, (3) for a consideration. The presence of the first two elements in bank night operations is without dispute.
Is there a consideration within the spirit and purpose of our lottery laws?
It should be kept in mind that the penal statute is directed to the operator. Is there a consideration moving to him?
The very fact that it is a business enterprise intended to swell the receipts from paid admissions to the theater evidences an intention to garner a profit from the gift enterprise. For practical purposes the measure of the consideration moving to him is the excess of receipts from paid admissions on bank nights, over what they would have been for the entertainment in the absence of the bank night attraction.
In the instant case the matinee receipts, stressed by the Court of Appeals, enters as an additional feature.
We would be definitely understood as holding the presence of this matinee feature, while...
To continue reading
Request your trial
-
State v. Epic Tech, LLC
...question of what constitutes a lottery or gift enterprise in the nature of a lottery has been here recently considered in Grimes v. State, Ala. Sup., 178 So. 73 [(1937)], and needs no reiteration."Under that authority, there can be no doubt that defendants’ advertising scheme comes within t......
-
State v. Epic Tech, LLC
...what constitutes a lottery or gift enterprise in the nature of a lottery has been here recently considered in Grimes v. State, Ala. Sup., [235 Ala. 192,] 178 So. 73 [(1937)], and needs no reiteration."Under that authority, there can be no doubt that defendants' advertising scheme comes with......
-
Albert Lea Amusement Corp. v. Hanson
...Wis. 153, 286 N.W. 707; Stern v. Miner, 239 Wis. 41, 300 N.W. 738. Contra: State v. Horn, 16 N.J.Misc. 319, 1. A.2d 51.3 Grimes v. State, 235 Ala. 192, 178 So. 73; Affiliated Enterprises, Inc. v. Waller, 1 Terry 28, 40 Del. 28, 5 A.2d 257; Gulf Theatres, Inc. v. State ex rel. Ferguson, 135 ......
-
State v. $223,405.86
...efforts by gambling interests to evade this prohibition in an endless variety of new and inventive ways. See, e.g., Grimes v. State, 235 Ala. 192, 193, 178 So. 73, 73 (1937) (noting that the language of § 65 was adopted from the Alabama Constitution of 1875 and that "[t]he lust for profit b......
-
The Alabama Legislature Takes Its Chance on Daily Fantasy Sports
...parte Ted's Game Enterprises, 893 So.2d 376 (Ala. 2004) (discussing the early history of case law interpreting § 65).10. Grimes v. State, 178 So. 73, 74 (Ala. 1938).11. Id. at 74.12. See Opinion of the Justices, 795 So.2d 630, 641 (Ala. 2001) (quoting 54 C.J.S. Lotteries § 5 (1925)).13. Min......