State v. Crescent Amusement Co.

• Decision Date: 13 June 1936
• Citation: 95 S.W.2d 310
• Parties: STATE ex rel. DISTRICT ATTY. GEN. v. CRESCENT AMUSEMENT CO. SAME v. SHORTLEY et al.
• Court: Tennessee Supreme Court

Page 310

95 S.W.2d 310

STATE ex rel. DISTRICT ATTY. GEN. v. CRESCENT AMUSEMENT CO.

SAME v. SHORTLEY et al.

Supreme Court of Tennessee.

June 13, 1936.

Error to Circuit Court, Maury County; R. L. Turner, Judge.

Bills by the State, on the relation of the District Attorney General of the Eleventh Judicial Circuit, against the Crescent Amusement Company and A. E. Shortley and others, wherein defendants filed a demurrer. To review decrees, relator brings error.

Affirmed.

Claude L. Boyd, of Waynesboro, for plaintiff in error.

George H. Armistead, Jr., of Nashville, and H. T. Shelton, of Columbia, for defendants in error.

DAVIS, Special Judge.

These bills were filed on relation of the District Attorney General of the Eleventh Judicial Circuit, upon the authority of our statute known as the Nuisance Act (Code, §§ 9324, 9325), for the purpose of preventing and enjoining the Princess Theatre, in Columbia, from conducting what is called "Opportunity Night" or "Bank Night," on which night defendant theatre proposed to give away a certain sum of money to the person holding the allegedly "lucky" ticket. The bills alleged that the scheme through which such gift of money is made and proposed to be made constitutes a gaming and a lottery under the statutes of the state, and is such offense against good morals and the public welfare as to authorize its suppression under the gaming and lottery laws of the state, and the Nuisance Act.

The bill in the first case was dismissed upon demurrer, whereupon the second bill was filed upon the theory that the injunction granted under the first bill continued in force, after appeal, in the absence of a provision to that effect in the court's decree. The second bill was filed on substantially the same grounds as the first bill, except that it included the position that the injunction on the first bill continued in effect; so we may properly dispose of both cases upon consideration of the pleadings in the first case.

The petition sets out that the defendant theatre, through its manager, Shortley, had been violating the gaming and lottery laws of the state, through the methods by which it was distributing money to patrons of the theatre, and that when attention was called to such violations, the theatre changed the scheme of distribution or gift of money, in an effort to avoid illegality, but each time retained the objectionable lottery features. The scheme finally settled upon, and complained of, as we understand it, is that the theatre has a book in the lobby thereof, which lobby any one may enter at any time, without charge, and write his name therein, a number being assigned each name, and those who purchase tickets to enter the show are urged to enter their names in this book. One night each week, designated "Opportunity Night," numbers corresponding to those opposite the names on the lobby register are placed in a receptacle, and the receptacle is taken on the stage of the theatre, where one number is drawn therefrom, and the person holding the corresponding number is awarded the accumulated cash prize. The weekly gift is $50, and if not claimed by the winner on a particular night, the fund is retained and increased weekly by the amount of $50, with the result that the cash prize sometimes amounts to several hundred dollars. The purchase of a ticket to enter the theatre is not required. It is alleged that the drawing, and award of a prize, is held at no certain hour of the night, but between 7:30 and 9:30 p. m., and it is said of necessity that one must purchase a ticket to obtain a seat in the theatre building, in order to fully participate in the drawing, as no one would stand for two hours, and hazard the chance of not being heard when called unless inside the building where the drawing takes place. It is alleged that, owing to the large number of persons who participate in the scheme, and the character and reputation of such participants, they cannot be indicted; those who participate in the drawing being equally guilty with the theatre which conducts the drawing. And it is said that the advertisement of a scheme of this kind has been forbidden admission to the United States mail. The consideration which the patrons of the theatre pay for the chance at the prize is alleged to be this: That theatregoers report the quality of the pictures on "Opportunity Night" to be much inferior to the pictures offered on other nights, and on this information the relator charges that on the nights the money is given away the defendant theatre exhibits a cheap film which costs less than that used on other nights, and this fact, together with the increased patronage from those who pay admission into the show merely in order to have a chance at receiving the cash prize, "perhaps" bear the expense of the prizes and stakes offered. The petition charges that this scheme is one merely for the benefit of the defendant theatre, its purpose being to increase the cash receipts from paid admissions to the show, and that the participants in this scheme, who expect to draw the prize, do not share the fruits of their efforts equally, and that the whole scheme is one of gaming and lottery, at the expense of the public, and is an unfair appropriation of the money of others.

The substance of the demurrer is that the scheme described is neither gaming nor a lottery, within the meaning of any statute of this state, and hence not within the purview of our Nuisance Act.

The gaming and lottery statutes, being for the protection of the morals of the people, and for the general welfare, are remedial and not penal; and as one apparent object of our Nuisance Act is the closing of houses which violate our gaming law, and the suppression of equipment used in the operation of such houses, there is no doubt that the relator is within his rights in invoking the statutes mentioned, if the facts alleged in the petition bring the case within the condemnation of the statutes relied upon by the relator.

Our gaming statute is Code, § 11275, reading as follows:

"If any person play at any game of hazard or address for money or other valuable thing, or make any bet or wager for money or other valuable thing, he is guilty of a misdemeanor."

Section 11278 makes the playing of certain enumerated games, or the keeping or exhibiting of tables therefor, a felony, but the scheme described in the petition could not fall within the meaning of any of...