Grimes v. State

• Decision Date: 29 June 1937
• Docket Number: 6 Div. 145
• Citation: 28 Ala.App. 4,178 So. 69
• Parties: GRIMES v. STATE.
• Court: Alabama Court of Appeals

178 So. 69

28 Ala.App. 4

GRIMES v. STATE.

6 Div. 145

Court of Appeals of Alabama

June 29, 1937

Rehearing Denied Oct. 5, 1937

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Cecil B. Grimes was convicted of conducting a lottery, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Grimes v. State, 178 So 73.

Foster Rice & Foster, of Tuscaloosa, for appellant.

A.A. Carmichael, Atty. Gen., and Wm. H. Loeb Asst. Atty. Gen., for the State.

RICE Judge.

Statement of Facts

The appellant was indicted for and convicted of conducting a lottery and fined $200.

The evidence on behalf of the State tended to show that within twelve months before the finding of the indictment appellant was city manager of the moving picture theaters located in Tuscaloosa, Ala., being employed as such by the Alabama Theatres, Inc., and that one Whitney Echols was the house manager of the Ritz, working under the direction of the defendant, and that during the period of time within twelve months before the return of the indictment there had been conducted at the Ritz Theatre a plan or enterprise referred to in the testimony as "Jack Pot Night," and that the plan of the "Jack Pot" was as follows:

The "Jack Pot Night" was held each Thursday night at the Ritz Theatre, in Tuscaloosa, Ala. A registration booth was maintained during all hours of each day of the week in the marquee of the theater, where registration cards could be signed, which cards were in words and figures as follows:

"Jack Pot Filing Card

Ritz and Diamond Theatres, Tuscaloosa, Ala.

Name: _________

Address: _________

Jack Pot Nights Are Held Each Thursday Night At 8:45 or Such Other Night as Advertised

"If the person whose name is drawn isn't present or has not registered during the matinee on above date, the weekly prize will be added to the Jack Pot each week until there is a winner. Only one name will be drawn each Jack Pot Night.

"I definitely understand the above rules and unless I am present at the drawing or have registered during the matinee on above day, I relinquish all claims to the Jack Pot.

Copyright 1935 Signed(((((((((

Foreman A. Rogers

Auburn, Ala."

And all people generally in Tuscaloosa, Ala., and vicinity, were permitted, if they so desired, to sign such a card, and a permanent alphabetical record was kept by the Ritz Theatre of the names of those signing such card, and no one was permitted to sign such card except once, and no charge of any kind was made or any consideration exacted from any one, and the signing of such card was absolutely free, no one being required to purchase a ticket of admission to register. On a stub of the card, divided from the body of the same by perforation, was this legend: "Jack Pot Night Deposit This Stub In Hopper

Name: ___________

Address: ___________

Drawing Stub."

At time of "registering" this stub was torn off from the body of the card and deposited in a container known as a "hopper," and on each Thursday night the hopper was placed upon the stage of the Ritz Theatre and some disinterested person was blindfolded and drew one of the stubs from the hopper, and if the person whose name was drawn from the hopper claimed the prize within two minutes, such person was given the prize known as "Jack Pot." The right to claim this prize was not limited to those who had paid an admission price to see a performance or the picture immediately prior to the drawing, but any one could claim the prize within two minutes, whether they had paid to attend a performance of the theater or not, or whether they were in attendance at the theater at the time of the drawing or not, and if they were not in the theater and did not have a ticket of admission and their name was drawn from the hopper, such person was entitled to enter the theater, without purchasing a ticket, claim the prize and leave the theater. The name drawn was called out in the theater and on outside of theater. That the foregoing phases of the scheme was given publicity by advertisements on the screen of the theater, and by "word of mouth" publicity given by the house manager of the theater, Mr. Echols, is undisputed. Some 4,000 people residing in Tuscaloosa, Ala., and vicinity, had signed such cards and had caused their names to be placed in the hopper, without any charge being made for the same. This drawing had been conducted each Thursday night for a period of about eighteen months prior to the returning of the indictment against the defendant.

In addition to the original registration card, those patrons of the theater who attended a performance of the theater prior to the hour of the drawing on the day of the drawing, viz., Thursday of each week, were permitted, if they so desired, to sign an additional card other than the registration card, which additional card was referred to in the testimony as "Matinee Registration Card," which matinee registration card was in words and figures as follows:

"Matinee Registration Card for Jack Pot Night

This is to Certify that I have attended the Matinee at the Ritz or Diamond today ____________

Mr., Mrs., Miss No. 66357

______

First Name Middle Name Last Name

Street Address: ______

Town: ______

This Portion For Theatre Files."

And on a "stub" of the card, separated from the above quoted portion by perforation, was this legend:

"Patron's Receipt.--Keep this receipt and present same if your name is drawn.

No. 66357

"This is to Certify that the Patron whose name appears on the detached portion of this card attend the Ritz or Diamond.

Today ___________

Signed __________

For the Theatre."

which stub was given to the patron. If a person who had attended a performance of the theater on the day of the drawing and certified to the attendance by signing one of these cards and who had at any time previously registered so that the name was in the hopper and such person's name was drawn from the hopper on that day, then such person was exempted from claiming the prize within two minutes after the name being drawn, but could claim the prize at anytime thereafter. No charge was made for the "Matinee Card," and signing matinee card did not increase number of times name was placed in hopper, as name was only placed in hopper once, which was at the time of the free original registration. The prize was in the form of money, being a minimum of $50. If the person whose name was drawn from the hopper on a given Thursday failed to claim the prize within two minutes, or if the person whose name was drawn had not attended a performance on the day of the drawing and had signed the "Matinee Registration Card" so certifying his attendance, then the prize was not paid to any one, but an additional $25 was added at each drawing thereafter to the original amount of $50, and subsequent drawings held each Thursday night thereafter until some one whose name had been drawn claimed the prize, in one of the manners provided for. When some one claimed the prize, then a new drawing was started, and so on until the jack pot was discontinued on commencement of this prosecution. The evidence on behalf of the State further tended to show that while the foregoing plan of operation was the one prescribed by the defendant to the House Manager, Whitney Echols, the plan was deviated from in the following manner:

Several witnesses were permitted to testify that they had attended a performance at the theater on a day of the drawing and had purchased tickets for others who had not accompanied them to the theatre, and had signed such other...