Meyer v. State

• Decision Date: 27 October 1900
• Citation: 37 S.E. 96,112 Ga. 20
• Parties: MEYER v. STATE.
• Court: Georgia Supreme Court

37 S.E. 96

112 Ga. 20

MEYER v. STATE.

Supreme Court of Georgia

October 27, 1900

Syllabus by the Court.

A merchant who gives to a designated class of customers an opportunity to secure, by lot or chance, any article of value additional to that for which such customers have paid violates the provisions of section 407 of the Penal Code which declares that no person "shall keep, maintain employ, or carry on any lottery in this state, or other scheme or device for the hazarding of any money or valuable thing."

Error from city court of Richmond county; William F. Eve, Judge.

J. H. Meyer was convicted of carrying on a lottery, and brings error. Affirmed.

J. S. & W. T. Davidson and Henry C. Roney, for plaintiff in error.

C. H. Cohen, Sol. Gen., for the State.

COBB J.

Meyer was arraigned on an accusation, under section 407 of the Penal Code, which declares that "no person, by himself, or another, shall keep, maintain, employ, or carry on any lottery in this state, or other scheme or device for the hazarding of any money or valuable thing." The accused was tried by the judge of the city court of Richmond county, presiding without a jury, upon an agreed statement of facts, and was convicted. That portion of the agreed statement of facts upon which the judgment of conviction was based was, in substance, as follows: The accused was a wholesale and retail dealer in cigars and chewing gum. On the day alleged in the accusation he was operating a "nickel-slot trade machine." The manner of the operation of this machine is as follows: A nickel is placed in the slot, a handle is pulled down, a wheel within the machine revolves, and when it comes to a stop the number of cards constituting a "hand" in a game of poker are exhibited. The person depositing the nickel is entitled to a cigar or package of chewing gum, each valued at five cents, and in addition thereto to a prize according to the hand displayed; the highest prize being one hundred cigars or packages of chewing gum for a "royal flush," and the lowest two of either commodity for two jacks or a better pair. Many customers purchase the same cigar and the same chewing gum over the counter, and pay a nickel therefor, while others purchase through the operating of the machine, and take the chance of getting more than the value of their money. A portion of the agreed statement of facts the judge refused to consider. These facts are, substantially, as follows: There is no element of chance in the operation of the machine, except that of getting more than a nickel's worth. The use of the machine is entirely voluntary to the customer, and the same is operated as an inducement to trade; the result being that for every cigar sold through the machine the accused gets about four cents instead of five cents, and about the same price for chewing gum, but, on account of the operation of the machine, the amount of business done is largely increased. This is a case made for the purpose of testing the question as to whether one who uses such a machine in his business violates the law. The accused made a motion for a new trial, which was overruled, and he excepted.

We do not think the judge erred in refusing to consider that portion of the statement of facts above detailed. The judgment was right on the facts passed upon by him, and, even if the facts which he refused to consider had been treated as properly before him, the judgment should have been the same. A "lottery" is defined to be "a scheme for the distribution of prizes by lot or chance." Webst. Int Dict. "A hazard in which sums are ventured for the chance of obtaining a greater value." Worcest. Dict. For other definitions, see Anderson's and Bouvier's Law Dictionaries. If, then, the scheme or device for the hazarding of money which is prohibited by the Penal Code must be of the same nature as a lottery, before any one could be held to have violated the law who had not actually run a lottery, it must be shown that he engaged in a scheme of similar nature; that is, a scheme or device for the distribution of prizes by lot or chance. We will not undertake to demonstrate that the scheme or device resorted to by the accused was a lottery, though this position, as will appear from the citations below, could be abundantly supported by authority. But we will consider the question as to whether he engaged in a scheme having for its purpose the distribution of prizes by lot or chance. Any scheme or device operated by a person by which one participating therein might either lose the money invested or get more than his money's worth, the operator retaining the money so lost, is a scheme or device for the hazarding of money, within the meaning of the section of the Penal Code above quoted. Wilson v. State, 67 Ga. 658. So, it was held in Kolshorn v. State, 97 Ga. 343, 23 S.E. 829, that where the accused kept and maintained a machine so contrived that if one dropped a nickel in the slot therein he would either lose the nickel or win 15 cents, he was guilty of a violation of the law contained in the section above quoted. In the case of Prendergast v. State (Tex. Cr. App.) 57 S.W. 850, a scheme very similar to the one referred to in Kolshorn's Case was held to be a lottery. In Christopher v. State (Tex. Cr. App.) 53 S.W. 852, it was held that a slot machine similar in its method of operation to those described in the two cases last referred to was a gaming device, within the meaning of the statutes of Texas on the subject...