State v. Hahn
| Decision Date | 13 October 1937 |
| Docket Number | 7692. |
| Citation | 72 P.2d 459,105 Mont. 270 |
| Parties | STATE v. HAHN et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County, First District George W. Padbury, Jr., Judge.
George Hahn, Tom Kane, Russell Fauchett, Stanley Tomcheck, John Curtiss, Joe Bush, and Michael Lang were charged by information with operation and management of a lottery, and from a judgment sustaining a demurrer to the information, the State appeals.
Reversed and remanded, with directions.
Harrison J. Freebourn, Atty. Gen., and Harold K. Anderson, Co. Atty and Floyd O. Small, Deputy Co. Atty., both of Helena, for the State.
Sherman W. Smith, of Helena, for respondent.
The State has appealed from a judgment sustaining a demurrer to an information purporting to charge defendants with the operation and management of a lottery in violation of our statutes. It is the contention of defendants that the information does not state a public offense.
The information was drawn substantially in the language of section 11149 et seq., Revised Codes, which is our statutory enactment against the operation of lotteries. It also set out in detail the procedure by which the alleged lottery, known as "skill ball," was operated. Briefly summarized it was substantially as follows: Participants in the game were accommodated with seats in defendants' establishment around rows of counters; cards were sold and distributed to all who wished to play; they were sold for 10 cents each, with no limit on the number of cards each participant might play; each card had printed upon it twenty-four differently numbered squares, with one square in the center of the card marked "free"; the squares were arranged in rows of five. The money having been collected for the cards, the game commenced: An operator handed one of the participants a ball, who tossed it into a square box across the counter from him; such box contained seventy-five pockets numbered from one to seventy-five; the ball lodged in one of these pockets, and the number of such pocket was then announced, and all participants having that number on their card or cards placed a been thereon; the box or hopper of numbered squares was then moved in front of the next participant, who was handed a ball with which to repeat the process, and so on down the line. Eventually some one in the room covered five squares in a row horizontally, vertically, or diagonally. When this occurred, such person or persons called out and, if the completed row checked with the numbered pockets in which the balls had lodged, then such individual was handed a cash prize. The cards were then immediately resold and the whole process repeated to the ultimate conclusion of another pay-off in cash.
The information also alleged that each participant was handed a coupon at the time he paid his 10 cents for a card. In fine print on each coupon the statement was printed that it represented a value of 10 cents when applied on the purchase of any of the premiums offered, and also that it represented the true value of the purchase made.
It is important to understand what legal requisites are necessary to charge the offense of operating a lottery under our statutes. They are generally considered to be three: The offering of a prize; the awarding of the prize by chance; and the giving of consideration for an opportunity to win the prize. 38 C.J. 289; 17 R.C.L. 1222. It must next be remembered that the sufficiency of the information was challenged by demurrer which admitted all facts therein sufficiently pleaded.
Defendants contend that the court's action in sustaining the demurrer was correct for three reasons, in substance as follows: That, as set out in the information, no consideration was paid for the privilege of playing skill ball, but that the game was free to the patrons of the establishment; that skill, and not pure chance, was involved in playing the game which enabled the most skillful player to win; and that cash was not given to the winner, but, in lieu thereof, a card representing a value if taken out in trade.
The county attorney first set out his charge in the language of the lottery statute, section 11149, et seq., supra, which in essence contains the legal requisites mentioned. Ordinarily a charge set out in this manner is sufficient. State v Shannon, 95 Mont. 280, 285, 26 P.2d 360. He went further, however, and proceeded to set out in detail the game which he claimed violated the lottery laws of the State. It is conceivable that in pursuing this method a prosecutor might plead himself out of court by detailing facts which, when challenged by demurrer, would show themselves to be without the ban of the statute. This, however, was not true of this information, but, on...
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State v. Wong Sun
... ... by this court in the following and other cases: State v ... Tudor, 47 Mont. 185, 131 P. 632; State v ... Paine, 61 Mont. 270, 202 P. 205; State v. Lake, ... 99 Mont. 128, 43 P.2d 627; State v. Stevens, 104 ... Mont. 189, 65 P.2d 612; State v. Hahn", 105 Mont ... 270, 72 P.2d 459; State v. Thierfelder, Mont., 132 ... P.2d 1035, decided January 2, 1943, and not yet reported [in ... State report]. Measured by the foregoing statutes as they are ... interpreted by the decisions just cited, the information is ... sufficient ... \xC2" ... ...
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... ... 383, 47 P.2d 649. If, ... then, the charge lodged against the alleged contemnors--in ... this instance by affidavit--was not sufficient in detail ... properly to advise them of the charge they had to answer, ... they were entitled to demand a bill of particulars. State ... v. Hahn, 72 P.2d 459, decided October 13, 1937, and not ... yet reported [in State report]; State v. Kurth, 72 ... P.2d 687, decided on the same date and not yet reported [in ... State report]; State v. Stevens, 104 Mont. 189, 65 ... P.2d 612. This remedy is available to them yet, and we think ... ...
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... ... patronizing general public is concerned it involves nothing ... more than mere chance." To the same general effect is ... Commonwealth v. Bowman, 267 Ky. 602, 102 S.W.2d 382 ... We are ... aware that this court in the case of State v. Hahn, ... 105 Mont. 270, 72 P.2d 459, when treating of section 11149, ... prohibiting lotteries, declared that the test to be applied ... in determining the character of the game was whether the ... element of skill predominated over the element of chance ... There are other authorities that make ... ...
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