State v. Greater Huntington Theatre Corp.
| Decision Date | 11 October 1949 |
| Docket Number | 10153. |
| Parties | STATE v. GREATER HUNTINGTON THEATRE CORPORATION. |
| Court | West Virginia Supreme Court |
Submitted Sept. 13, 1949.
Syllabus by the Court
1. Whether a request for a bill of particulars in a criminal case be granted or refused, rests in the sound discretion of the trial court; and its refusal to grant such request will not be held to be error, unless, in the circumstance of the case, it is clear that such refusal operated to prejudice the rights of the defendant, and amounted to an abuse of sound discretion.
2. A defendant charged with a criminal offense, by indictment is entitled to examine such indictment, as well as the statutory list of jurors before whom his case is expected to be tried; but one charged with a misdemeanor is not entitled to have furnished to him, without fee, a copy of such list of jurors.
3. 'The essential elements of a lottery are consideration prize and chance; and any scheme or device, by which a person, for a consideration, is permitted to receive a prize or nothing, as may be determined predominately by chance, is a lottery.' State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553, 163 A.L.R. 1265.
4. Where the operator of a theater conducts, on established dates, and in connection with the entertainment provided for its patrons, what is determined a 'give away' program, scheme or plan, by which prizes are awarded to those who, by registering their names with the operator, and who receive a dated card evidencing such registration; and the winners of such prizes are confined to those who have registered, and are determined by chance; the purchase of a ticket to the entertainment aforesaid furnishes the consideration paid to the operator for the opportunity to participate in the determination, by chance, of the winners of the prizes offered, and such program, scheme or plan constitutes a lottery under the provisions of Code, 61-10-11. The fact that persons are permitted to register as aforesaid without purchasing a ticket for the entertainment, does not take the entire program, scheme or plan out of the inhibitions of the statute aforesaid.
5. Code, 56-6-5, which provides for the submission of interrogatories to a jury in the trial of any issue or issues does not apply to trials in criminal cases.
6. 'The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.' State v. Boggs, 103 W.Va. 641, 138 S.E. 321; State v. Simon, W.Va., 52 S.E.2d 725.
George S. Wallace, Huntington, George S. Wallace, Jr., Huntington, Philip P. Gibson, Huntington, J. J. N. Quinlan, Huntington, for plaintiff in error.
Ira J. Partlow, Attorney General, Thomas J. Gillooly, Assistant Attorney General, for defendant in error.
The Greater Huntington Theatre Corporation, a corporation, hereinafter called defendant, was indicted at the October term, 1948, of the Common Pleas Court of Cabell County, on a charge of conducting a lottery in the City of Huntington in said county. A demurrer and motion to quash the said indictment were overruled. A trial of the case before a jury resulted in a general verdict of guilty, on which, after overruling a motion to set aside said verdict and grant a new trial, judgment was entered imposing a fine of $1,000.00. A petition to the Circuit Court of Cabell County for a writ of error to the judgment aforesaid was denied, and to that ruling this Court granted this writ of error.
The indictment against the defendant is based upon Code, 61-10-11, which reads as follows: 'If any person shall set up or promote or be concerned in managing or drawing a lottery or raffle, for money or other thing of value, or knowingly permit such lottery in any house under his control, or knowingly permit money or other property to be raffled for in such house, or to be won therein, by throwing or using dice, or by any other game of chance, or knowingly permit the sale in such house of any chance or ticket, or share of a ticket, in a lottery, or any writing, certificate, bill, token or other device purporting or intended to guarantee or assure to any person or to entitle him to a prize, or a share of, or interest in, a prize to be drawn in a lottery, or shall, for himself, or any other person, buy, sell, or transfer, or have in his possession for the purpose of sale, or with intent to exchange, negotiate, or transfer, or shall aid in selling, exchanging, negotiating, or transferring a chance or ticket, or a share of a ticket in a lottery, or any such writing, certificate, bill, token or device, he shall be guilty of a misdemeanor, and, upon conviction, shall, in the discretion of the court, be confined in jail not more than one year or be fined not exceeding one thousand dollars, or both: Provided, however, That this section shall not be deemed to apply to that certain type or form of lottery or raffle designated and familiarly known as 'policy' or 'numbers'.'
The statute quoted above was, apparently, enacted to meet the requirements of Section 36, Article VI of the Constitution of this State which provides that: 'The Legislative (Legislature) shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this State.' The indictment returned as aforesaid, against the defendant, is in four counts, and eliminating formal allegations, the first count thereof charges that the defendant 'did unlawfully set up and promote and was concerned in managing and drawing a lottery and raffle for money and other things of value, against the peace and dignity of the State.' The second count charges that the defendant 'did knowingly and unlawfully permit a lottery and raffle for money and other things of value to be conducted on premises under its control, against the peace and dignity of the State.' The third count charges that the defendant 'did knowingly and unlawfully permit money and other property to be raffled for and won in a game of chance played, held and conducted on premises under its control, against the peace and dignity of the State.' And the fourth count charges that the defendant 'did knowingly and unlawfully permit, for a consideration, on premises under its control, the signing of cards and entering of names to be used in conducting a lottery for money and other things of value on said premises, the signers of the cards, selected by chance, being entitled to a prize and share of and interest in a prize to be drawn in said lottery, against the peace and dignity of the State.'
As the first step in its defense, the defendant appeared by its counsel and moved the court to require the prosecuting attorney to file a bill of particulars, showing fully the nature of the offense charged in the indictment, and the facts and circumstances upon which the State would reply for a conviction, and tendered an affidavit in support of such motion. There being objection thereto on the part of the State, the court, on November 15, 1948, denied such motion to which ruling the defendant excepted. The defendant then moved the court that the prosecuting attorney be required to furnish it a list of the jurors by whom it was to be tried, to which motion there was objection on the part of the State, and the same was overruled, to which ruling the defendant excepted. On the same day the defendant tendered and filed its demurrer to the said indictment. Later, on December 6, 1948, the same demurrer, together with a motion to quash, was interposed. The demurrer was to the indictment and each count thereof, and it was alleged therein that the indictment failed to meet the requirements of Section 14, Article III of the Constitution of this State, in that it failed to inform the defendant fully and plainly of the character and cause of the accusation against it. As to the first count it is alleged that while said indictment follows the language of the statute, it was not sufficient to inform the defendant of the time and place of the alleged offense so as to protect it upon a second indictment for the same offense, for the alleged reason, that the defendant was interested in four different theatres all situated in Cabell County, West Virginia. As to count two, it is alleged that it failed to give the defendant notice of the time and place in which the offense is alleged to have been committed. As to the third count, it is alleged that said count in stating the three types of lotteries set out in the statute, namely, an ordinary raffle; a winning in which the dice game is the element of chance; and a winning by means of any game of chance; is defective because it does not charge which of the three schemes or devices was used. Also it is contended that it does not fix the date or describe the premises where the alleged offense took place. As to count number four, it is alleged that: 'That count does not state any offense under the statute.', and that 'there is no provision in the statute which makes the signing of a card or entering of a name to be used by some person not named in conducting a lottery for money an indictable offense.' Issue on the demurrer being joined said demurrer was overruled to which ruling the defendant excepted. Nothing was presented by the defendant in support of its motion to quash other than the grounds urged in support of the demurrer. The motion to quash was overruled and an exception to such ruling taken at the time.
The errors assigned will be stated in the order in which we propose to discuss the case. First, the refusal of the...
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