State v. Danz

• Decision Date: 21 October 1926
• Docket Number: 19756.
• Citation: 140 Wash. 546,250 P. 37
• Court: Washington Supreme Court
• Parties: STATE v. DANZ et al.

250 P. 37

140 Wash. 546

STATE v. DANZ et al.

No. 19756.

Supreme Court of Washington, En Banc.

October 21, 1926

Appeal from Superior Court, King County; Brown, Judge.

Simon Danz and another were convicted of operating a lottery, and they appeal. Affirmed.

Parker J., Tolman, C.J., and Mackintosh, and Askren, JJ dissenting.

A. J Laughon, of Seattle, for appellants.

Ewing D. Colvin and Ethan Allen Peyser, both of Seattle, for the State.

MITCHELL J.

Simon Danz and S.D. Maine were jointly charged with the crime of operating a lottery. They were tried together, convicted, fined, but no costs imposed, and have appealed.

Appellant Danz operated a moving picture show in Seattle known as the Hollywood Theater, situated in a residential district. Appellant Maine was associated with him in the distribution of groceries or other personal property of value from the stage of the theater once each week. The property distributed cost the theater nothing, but was collected by Maine from various stores, whose compenation was derived from having their names mentioned as the goods were distributed. The distribution was by lot and chance. The enterprise was locally and commonly known as the 'country store,' and put on Thursday night of each week; such night being a time when the theater did not put on one of its biggest pictures. On the night of each drawing each adult theater patron, upon paying the admission price, received a lottery ticket. The evidence shows that by a card conspicuously placed at the entrance to the theater the appellants offered free tickets to the drawing without the necessity of purchasing an admission ticket to the theater, in which respect, however, the evidence also shows without dispute that no one ever asked for, or received, the one without buying the other. Nor was there any dispute or denial of the fact that the so-called 'country store' was put on as 'an additional drawing card' for such occasions.

The prosecution in this case is based on section 2464, Rem. Comp. Stat., which declares a lottery to be unlawful and a public nuisance, and defines it as 'a scheme for the distribution of money or property by chance, among persons who have paid, or agreed to pay, a valuable consideration for the chance, whether it shall be called a lottery, raffle, gift enterprise, or by any other name.' The same section of the statute further provides:

'Every person who shall contrive, propose or draw a lottery, or shall assist in contriving, proposing or drawing a lottery, shall be punished,' etc.

The elements of a lottery as defined by statute are: (1) The distribution of money or property; (2) chance; and (3) a valuable consideration paid, or agreed to be paid, for the chance. The name by which the enterprise is called is immaterial. The language is broad in this respect.

The evidence in this case showed that on each of the occasions the 'country store' was held the appellants distributed goods and merchandise by chance to a number of persons in the theater who had purchased admission tickets for the usual and customary price, and with those tickets other tickets to the drawing. The evidence also showed that the goods distributed had substantial value. It was so testified to by merchants who furnished the goods.

Thus the state established the first and second elements of the crime charged. We do not understand that the appellants contend to the contrary. But the chief argument on behalf of the appellants on this branch of the appeal is that the element of consideration for a chance in the drawing was lacking. But this, under the facts in this case, cannot be determined as a matter of law in favor of the appellants. Manifestly, it was the plan and purpose of the appellants to get additional money by putting on the chance drawing. The testimony shows it was put on as an additional drawing card. The patrons knew it was 'country store' night. They paid a valuable consideration to participate. The fact that they paid the same price charged on other nights when the theater was running a more popular play without an added attraction is not conclusive or controlling in favor of the appellants. A valuable consideration was paid. What did the purchaser get? Not simply a ticket for the screen show, but a ticket to that, and to the chance drawing. The appellants and their patrons so understood and intended it. That was the plan and purpose for which the consideration was paid. Nor is the fact that free tickets were offered to outsiders material in any controlling sense. None such were given out as a matter of fact, and, if there had been, it would not of itself have made any difference. If in the flourishing days of the Louisiana lottery its management had advertised that it would give a free ticket to the president of every bank in the city of New Orleans, that would not have changed the scheme from a lottery, whether or not any one or all of such free tickets were accepted.

Counsel for appellants has considerately called our attention to the lottery statutes of a great many states, admitting they differ more or less according to the three classes into which he puts them, and to cases from the courts of many of those jurisdictions. We need not attempt the arduous task of reviewing, applying, or distinguishing those statutes and cases, because in all fair consideration the question is settled in this state by the case of Society Theater v. Seattle, 118 Wash. 258, 203 P. 21. That was a case in which the Society Theater and an association of merchants, manufacturers, and growers sued to enjoin officers of the city of Seattle and of the county of King from enforcing a city ordinance and the state relating to lotteries. The plan of those who furnished the goods, claimed by them to have been an advertising one, was to distribute tickets to patrons of moving picture houses after patrons had been admitted to the theaters in the usual manner. Then:

'Following the regular performance, the association conducts a drawing by lot, and those holding the fortunate tickets receive a prize, consisting of a sack of flour, or a can of a certain brand of fish, or other like article. The theaters have nothing to do with the giving out of the tickets, the drawing, or the distribution of the prizes, and they do not make any extra charge for admission to the theater. It will thus be observed that the theaters have no direct connection with the distribution of the tickets or the prizes, and that the persons receiving them do not pay any direct consideration for them.'

Upon a preliminary hearing in that case an injunction was granted against the enforcement of the laws. The city appealed. This court reversed the order and remanded the case for further proceedings. Now counsel for appellants argues that that case is not in point, and that certain language used in it is dictum, for the reason that the appeal involved only the city ordinance which is broader than the statute, while the language complained of contained in the decision was under, and with reference to, the state statute alone. It is true that we stated in that case that the definition of a lottery as found in the ordinance was probably somewhat wider than that usually given by the dictionaries, and held that it was unnecessary for us to determine whether the acts of the plaintiffs in that case were in violation of the state law; nevertheless, the value of that case or the language in it now complained of as applied to the present one is found in the discussion of the weight or value of the facts therein as related to the crime of lottery. Especially so, because that analysis is made in immediate connection with an enumeration of the elements of a lottery--precisely identical with the elements of a lottery as defined by our statute. In this respect we said:

'The elements of a lottery are: First, a consideration, second, a prize, and third a chance. It needs no argument to show that the second and third elements appear in the business conducted by respondents. But it is argued that the element of consideration does not appear because the patrons of the theaters pay no additional consideration for entrance thereto, and pay nothing whatever for the tickets which may entitle them to prizes. But while the patrons may not pay, and the respondents may not receive, any direct consideration, there is in indirect consideration paid and received. The fact that prizes of more or less value are to be distributed will attract persons to the theaters who would not otherwise attend. In this manner those obtaining prizes pay considerations for them, and the theaters reap a direct financial benefit.'

The evidence was sufficient to take the case to the jury.

After the verdict was returned, the appellants moved in arrest of judgment, for the reason that the information did not state facts sufficient to constitute a crime. Without setting out the information, we are satisfied the motion was properly denied. Indeed, as we understand the record, the evidence went in without objection on this score under what was in effect an amicable understanding to test the application of the law to this particular enterprise. Appellants seemed to know what the evidence would be, admitted there was no dispute of it, and introduced no evidence of their own.

Other assignments involve the correctness of two instructions given to the jury. We think, however, that what has already been said herein is sufficient answer to those assignments.

Judgment affirmed.

MAIN, HOLCOMB, FULLERTON, and BRIDGES, JJ., concur.

PARKER J. (dissenting).

I cannot concur in the argument or conclusion of the foregoing majority opinion. While I do not disagree with the statement of the facts made by Judge MITCHELL, I feel that they...