State v. Dorau

• Decision Date: 08 April 1938
• Citation: 198 A. 573,124 Conn. 160
• Court: Connecticut Supreme Court
• Parties: STATE v. DORAU.

198 A. 573

124 Conn. 160

STATE v. DORAU.

Supreme Court of Errors of Connecticut.

April 8, 1938

Appeal from Superior Court, Middlesex County; Edward J. Quinlan Judge.

Information in three counts charging Ernest Dorau with the crime of operating a gift enterprise, operating a club lottery, and lottery. Judgment of not guilty on the first two counts, and guilty on the third, from which the defendant appealed.

No error.

Philip Pond, of New Haven, George S. Ryan, of Boston, Mass and Emmett Thurmon, of Denver, Colo., for appellant.

Bertrand E. Spencer, State's Atty., of Middletown, for the State.

MALTBIE, Chief Justice.

The defendant, manager of a motion picture theater in Middletown having been convicted of a violation of law in operating a so-called ‘ Bank Night,’ appealed. The case was submitted to the trial court upon an agreed statement of facts and the nominal penalty imposed shows that this is a test case to determine whether such nights as conducted by the defendant violate our criminal law. A Colorado corporation owns the rights in the plan of operating these nights, protected by copyright and patent application, and it gives licenses to theaters to use the plan, the defendant's theater being so licensed. The plan operates in this way: The theater provides a registration book which any person over eighteen years of age, whether a patron of the theater or not, may sign. The book is placed in the lobby or outside the doors of the theater and no charge is made for registration nor need one who does so buy a ticket to the theater. A number is given to each name. On stated occasions the numbers representing all the names registered are placed in a container on the stage of the theater and one number is drawn. The name of the person having that registration number is announced both inside and outside the theater and on coming forward within a certain time, he receives a sum of money which the theater provides from its own funds. If the person whose number is drawn is outside the theater, he is permitted to enter and claim the award without paying admission. If he does not come forward within the time set, the money is added to the sum to be awarded on the next Bank Night. Under the plan, various safeguards are thrown about its operation to insure fairness in the allotment of the money.

The defendant in carrying out the plan conformed to the method above described. Substantially the same quantity and quality of entertainment has been provided on Bank Nights as on other nights. It has frequently happened that the person whose number was drawn did not purchase a ticket of admission to the theater, but was outside when the name of the winner was announced, and was admitted without charge to claim the award. The plan is an advertising device to increase the attendance at the theater and as used by the defendant and other theaters it very markedly accomplishes this purpose. The sum provided for the award each week is $35, but due to the failure to claim the award by the person whose number is drawn and its addition to the sum provided for the next Bank Night there have been awards of $140, $285, and $630, and the average award is about $175.

Nothing can be said from the standpoint of public morals in defense of this plan. It is true that under it no persons risk any money of their own aside from the fact that no doubt by it many persons are induced to attend the theater when otherwise they would not. The evil of gambling and like practices is not by any means confined to the impoverishment and squandering of the money which directly results from the making of a wager. In Iris Amusement Corp. v. Kelly, 366 Ill. 256, at page 267, 8 N.E.2d 648, 653, the court, holding that the operation of a ‘ Bank Night’ constituted a lottery and finding the consideration or price generally regarded as necessary to constitute a lottery in the fact that those who entered the theater in actual fact paid for those on the outside as well, said: ‘ In this scheme there is present every element of the evils attendant upon mass gambling. A small stake concealed within the price of admission gives its chance for a large prize, which may become large enough to arouse intense cupidity; there is the excitement of drawing a lucky number with the attendant exultation for one fortunate individual; there is depression and disappointment for a thousand losers, many of whom must think enviously of what they could do with so much money had they won it, and there is the constant temptation to continue to play in the hope of winning. We have thus created cupidity, envy, jealousy and temptation-the very things sought to be avoided by that enlightened public policy of most of the world which has outlawed lotteries.’ In State v. Shorts, 32 N.J.L. 398, 401,90 Am.Dec. 668, Beasley, C.J., said: ‘ A lottery, says Johnson, is a ‘ game of chance; a distribution of prizes by chance.’ This ingredient of chance is, obviously, the evil principle against which all prohibitory laws are aimed.'

This our statutes have recognized since the earliest times and today they provide a penalty to be imposed upon any one who ‘ shall play at any game for any valuable thing,’ without any requirement that the player himself risk anything, as, when, for instance, the gaming is for money or property put up by another. General Statutes, §§ 6317, 6318, 6320; State v. Harbourne, 70 Conn. 484, 490,42 A. 179,40 L.R.A. 607, 66 Am.St.Rep. 126. Another of our statutes is strongly suggestive that the plan of Bank Nights is contrary to the public policy of this state. It provides a penalty to be imposed upon any person who shall sell any personal property, ‘ and shall offer the purchaser an interest in other property to be ascertained by lot or hazard or any articles of value, or any interest therein, as a present or gratuity, the quality, kind or value of which shall be unknown to the purchaser at the time of sale.’ General Statutes, § 6334. The evil which arises out of such practices is that it fosters in men and women a desire to gain profit, not by their own efforts, not as a reward for skill or accomplishment, but solely by the lucky turn of chance, that it encourages in them the gambling instinct and that it makes it appeal to the baser elements in their nature. The defendant suggests as one reason for the unusual popularity of Bank Night ‘ the accumulative award,’ but the very fact that because of it large sums are at times awarded intensifies such evils as inhere in the plan. It is designed solely to serve the selfish ends of the owners of theaters who operate it. It is so devised that it may, if possible, circumvent statutory provisions outlawing gambling, lotteries, and like practices. The question before us is whether that has been successfully accomplished as regards our own statutes. Of course, this being a criminal prosecution, we cannot sustain the conviction of the defendant unless his acts are within the prohibition of one of our criminal laws; but in determining that question we are not obliged to give to a statute a narrow technical meaning contrary to a legislative intent falling ‘ within its spirit and [its] fair import.’ State v. Faro, 118 Conn. 267, 273, 171 A. 660, 663.

In other jurisdictions there have been many cases involving the legality of the plan with varying decisions. See Notes, 103 A.L.R. 866, 109 A.L.R. 709, and a very inclusive article, 1 American Lawyer 5. No purpose would be served by any extended reference to these cases, for each was necessarily based upon the statutes of a particular jurisdiction. The decision of almost all of them depended upon the question whether the plan constituted a forbidden lottery. As we shall point out our own statute...