State v. Eames

• Decision Date: 04 February 1936
• Citation: 183 A. 590
• Parties: STATE v. EAMES.
• Court: New Hampshire Supreme Court

183 A. 590

STATE

v. EAMES.

Supreme Court of New Hampshire. Grafton.

Feb. 4, 1936.

Transferred from Superior Court, Grafton County; James, Judge.

John B. Eames was charged by information with disposing of money by lottery to which he entered plea of not guilty. Transferred without ruling by trial judge on agreed facts.

Information quashed.

Information alleging that the defendant disposed of money by lottery in violation of P.L., c. 384, § 1. Plea, not guilty. The facts are agreed.

The defendant operates a moving picture theater in Littleton. On March 10, 1935, he entered into a contract with Affiliated Enterprises, Inc., under the terms of which he was licensed to advertise his business by means of a copyrighted scheme bearing the trade-marked name of "Bank Night."

The defendant operated this scheme as follows: Each week he deposited the sum of $25 in a local bank. He also set up at the entrance to his theater a book called a register, in which any person over 16 years of age was permitted to write his name and address opposite a number. No charge was exacted for the privilege of signing, nor was it granted only to those who had purchased a ticket of admission to the theater. It was free to all, but no person was allowed to sign more than once.

On each Monday night at an advertised hour the numbers corresponding to those appearing opposite the names in the register were placed in a box on the stage. A person selected at random from the audience was then called to the stage and permitted to draw a number. The person whose name appeared opposite that number in the register was then declared the winner of the bank deposit. In order for the winner to claim the bank deposit, however, he had to present himself and prove his identity within five minutes after the drawing. If the winner did not appear within that time, the bank deposit was left in the bank to accumulate at the rate of* $25 per week until some winner qualified for the augmented award.

Since the number of registrations was usually greatly in excess of the seating capacity of the theater, the name of the winner was announced in the lobby. In the event that he was there or in the vicinity, but not in the theater, he was permitted to enter without charge for the purpose of identifying himself and claiming the prize. Usually a number of people were outside the theater waiting for the announcement of the award, and on some occasions the winner was in fact waiting there.

It is not disputed that, as a result of the operation of "Bank Night," the patronage of the defendant's theater was greatly increased not only on Monday evenings but throughout the week as well. While this scheme was in operation, there was no diminution in the number of pictures exhibited nor was there any increase in the price of admission.

The question of whether or not, on the above facts, the defendant has violated the statute, was transferred without ruling by James, J.

Thomas P. Cheney, Atty. Gen, and Dudley Orr, Asst. Atty. Gen, for the State.

Henry A. Dodge, of Littleton, Emmett Thurmon, of Denver, Colo, and George S. Ryan, of Boston, Mass, for defendant.

WOODBURY, Justice.

The authorities are in agreement upon the proposition that three elements must be present in order to constitute a lottery within the meaning of that word as used in criminal statutes. These three elements are: (1) A prize; (2) chance; (3) consideration. Both the state and the defendant agree that the first two elements are present in "Bank Night." The issue between them is over the element of consideration.

The state first suggests that any "consideration sufficient to support a contract at common law is sufficient to make illegal a scheme fulfilling the other requirements of a lottery." Support for this proposition is to be found in dicta contained in Brooklyn Daily Eagle v. Voorhies (C.C.) 181 F. 579, and Equitable Loan Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 62 L.R.A. 93, 97 Am.St.Rep. 177. In our opinion, detailed discussion of this argument is not required, because our statute (P.L. c. 384, § 1) definitely requires that, in order to constitute a lottery, payment must be given for the opportunity to participate.

This statute reads as follows: "No person shall make or put up a lottery, or pretended lottery, or shall dispose of, or offer or pretend to dispose of, any money or property, real or personal, by lottery, or in any such way that a hope or expectation of gain by luck or chance is made an inducement to pay for such property, or for any share or chance therein." The latter half of this section, beginning "or in any such way," etc, is clearly a partial definition of the word "lottery" which appears just before it. It clearly requires that pay must be given for the opportunity to participate. Although signing one's name in a book or appearing at the theater within five minutes of the time of the drawing might be regarded as consideration, it cannot be called "pay" without warping that word out of all recognition. For the purpose of creating a lottery, consideration must be something of value.

The state's principal contention, however, is that the participants did in fact give something of value for the chance to win the prize. The defendant, on the other hand, asserts that the prize was a donation on his part, and that as such was not in violation of the law.

While it is abundantly clear from our statute...