State v. Hundling

• Decision Date: 21 January 1936
• Docket Number: 43219.
• Citation: 264 N.W. 608,220 Iowa 1369
• Parties: STATE v. HUNDLING.
• Court: Iowa Supreme Court

264 N.W. 608

220 Iowa 1369

STATE v. HUNDLING.

No. 43219.

Supreme Court of Iowa.

January 21, 1936

Appeal from District Court, Jasper County; Frank Bechly, Judge.

Appeal from a judgment convicting the defendant of the offense of advertising a scheme for a lottery known as " bank night."

Reversed.

J. R McManus, of Des Moines, amicus curiæ .

M. R Hammer, Jr., of Newton, and S. P. Halpern, of Minneapolis Minn., for appellant.

Edward L. O'Connor, Atty. Gen., and P. J. Siegers, Co. Atty., of Newton, for the State.

POWERS, Justice.

The defendant, who was manager and part owner of a motion picture theater at Newton, was convicted of advertising a scheme for a lottery known as " bank night," in violation of the provisions of section 13218, Code 1931. The advertising consisted of the distribution of handbills announcing that a prize of $50 would be given away at the theater on the following Thursday night to the person whose name was drawn if claimed within two and one-half minutes. It advised that the drawing would be from names appearing in a registration book kept by the theater for that purpose and in which every one was invited to register without charge, and that but one name would be drawn, and that if the person did not appear within two and one-half minutes, $25 would be added by the theater to the fund and that a drawing would take place for the enlarged fund on the following Thursday night. It urged people to register and thus have their names among those from which the winner of the prize would be drawn. In addition to these handbills, there were banners displayed at the theater on which the words " bank night" were written. The scheme thus advertised was carried out at the theater in a manner consistent with the advertising. The evidence shows that the defendant, as manager of the moving picture theater maintained a registration book in the lobby of the theater, another in a drug store in the town, and others at various places in the town of Newton. People generally were invited to register their names in one of these books. They were not required to pay anything to register in the books, and no consideration of any kind was required as a condition to registration. Each person registered was assigned a number. On the night the prize was to be given away, all these numbers were put in a receptacle and one number drawn out. When the number was thus drawn, by reference to the registration books, the person's name was obtained. It was then announced from the stage of the theater and also at the front door of the theater. It was further announced at the front door of the theater that if the person whose name was announced was outside the theater, such person would be permitted to enter to obtain the prize without the payment of any admission fee.

The question in the case is whether the scheme thus shown was a lottery, the advertising of which would be a violation of section 13218 of the Code.

Our statute prohibiting the advertising of a lottery makes no attempt to define a " lottery." To arrive at a proper definition, we must look to the generally accepted meaning of the term as defined by the authorities, and if there be conflict among the authorities as to the proper definition, we must adopt the definition which includes as an element the evil which the statute was obviously intended to prevent.

The giving away of property or prizes is not unlawful, nor is the gift made unlawful by the fact that the recipient is determined by lot. Our statute provides that the recipient of a public office may be determined by lot in certain cases where there is a tie vote. Section 883, Code 1931. To constitute a lottery there must be a further element, and that is the payment of a valuable consideration for the chance to receive the prize. Thus, it is quite generally recognized that there are three elements necessary to constitute a lottery: First, a prize to be given; second, upon a contingency to be determined by chance; and, third, to a person who has paid some valuable consideration or hazarded something of value for the chance. Bishop, in his work on Statutory Crime, defines a " lottery" thus: " A lottery is any scheme where one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." 38 C.J. p. 286, defines a " lottery" as follows: " A species of gambling which may be defined as a scheme for the distribution of prizes or things of value by lot or chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize; or as a game of hazard in which small sums of money are ventured for the chance of obtaining a larger value, in money or other articles." This is the generally accepted meaning of the term, especially when used in criminal statutes. 17 R.C.L. 1222; Yellow-Stone Kit v. State, 88 Ala. 196, 7 So. 338, 7 L.R.A. 599, 16 Am.St.Rep. 38; Cross v. People, 18 Colo. 321, 32 P. 821, 36 Am.St.Rep. 292; People v. Cardas, 137 Cal.App.(Supp.) 788, 28 P.2d 99; R. J. Williams Furniture Co. v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579, 57 A.L.R. 421; People v. Mail & Express Co., 179 N.Y.S. 640; Id., 192 A.D. 903, 182 N.Y.S. 943.

Even in the federal cases, applying a federal statute regulating the use of the mails, where the language of the statute is much more sweeping and refers to lotteries, gift enterprises, and all similar schemes, substantially the same definition has been adopted. Post Publishing Co. v. Murray (C.C. A.) 230 F. 773. The cases in this court, so far as they deal with the exact question, are in harmony with this definition. See Brenard Mfg. Co. v. Jessup & Barrett Co., 186 Iowa 872, 173 N.W. 101; Chancy Park Land Co. v. Hart, 104 Iowa 592, 73 N.W. 1059.

The term " lottery," as popularly and generally used refers to a gambling scheme in which chances are sold or disposed of for value and the sums thus paid are hazarded in the hope of winning a much larger sum. That is the predominant characteristic of lotteries which has become known to history and is the source of the evil which attends a lottery, in that it arouses the gambling spirit and leads people to hazard their substance on a mere chance. It is undoubtedly the evil against which our statute is directed. The provisions of the statute making it a crime to have possession of lottery tickets...