State v. Jones

• Citation: 107 P.2d 324,44 N.M. 623
• Decision Date: 23 September 1940
• Docket Number: No. 4541.,4541.
• Parties: STATEv.JONES et al.
• Court: Supreme Court of New Mexico

44 N.M. 623

107 P.2d 324

STATE

v.JONES et al.

No. 4541.

Supreme Court of New Mexico.

Sept. 23, 1940.Rehearing Denied Nov. 13, 1940.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Proceeding by the State of New Mexico against J. E. (Ted) Jones and another, upon an information charging defendants with conducting a lottery. From an order quashing the information and directing defendants' discharge, the State appeals.

Affirmed in accordance with opinion.

The “consideration” necessary to a lottery may be adequately measured by the usual tests applicable in the law of contracts, since whether a state of facts answers definition of a lottery does not depend upon nature of suit or proceeding in which the facts are tested. Comp.St.1929, § 35-3803 et seq.

Filo M. Sedillo, Atty. Gen., George Lougee, Asst. Atty. Gen., and G. L. Reese, Sr., Asst. Dist. Atty., of Roswell, for appellant.

George A. Threlkeld, of Roswell, for appellees.Mechem & Hannett, of Albuquerque, amici curiae.

SADLER, Justice.

The State appeals from an order sustaining defendants' motion to quash an information and directing their discharge. They were informed against for conducting a lottery in promoting what is generally known as “Bank Night” at a moving picture theatre in the city of Roswell. The facts are substantially the same as those presented in City of Roswell v. Jones, 41 N.M. 258, 67 P.2d 286, and if that decision is to be followed here, even though declared erroneous, the trial court's action in sustaining the motion to quash should be upheld.

When the question was before us in the former case, there was a divided opinion in the court, the main point of disagreement being over the question whether there was present in the scheme one of the three essential elements necessary to constitute a lottery, namely, consideration. That there were present the other two essential elements, prize and chance, all agreed. Now, the matter is again before us on appeal by the State, and the Attorney General earnestly insists that the former decision was incorrectly decided and asks that it be overruled. This involves a re-examination of the whole question.

Under the plan disclosed by the information, the defendants operate the Yucca Theatre in the city of Roswell and in connection with such operation established in First National Bank of Roswell what is known as “Bank Night Account”, the initial deposit being One Hundred ($100) Dollars, to be disposed of as hereinafter disclosed.

A system of registration was provided, a register being kept in the lobby of the theatre wherein are lines for the registration of those desiring to register, with an identification number opposite the name of the registrant. Admission tickets to the theatre sell for thirty-one (.31¢) cents and moving pictures are regularly shown therein. All purchasers of admission tickets may register, although purchase of a ticket is not a prerequisite to registration and participation in the drawing later held. The great majority of the registrants, however, are those who have purchased tickets.

The names of all registrants are written on small slips of paper and placed in a box and on “Bank Night”, which is Thursday night of each week, when the best shows are not put on, a slip of paper bearing the name and number of the registrant is withdrawn from said box and the name of the registrant is publicly announced from the stage of the theatre and also from the back door of the theatre to those waiting outside. If the person whose name is called be either on the inside or outside and answers immediately, he or she is asked to come forward and claim the amount in the bank account on that night, the sum varying from one hundred ($100) to five hundred ($500) dollars or more. If no one answers to the name called, the bank night fund is increased by the sum of thirty-five dollars and carried forward to the next “Bank Night”, one week later. The process is then repeated until some one answers immediately to the name called and comes forward to claim the amount in the account for that night and the same is thereupon paid over to the holder of the lucky number.

As a result of this scheme, large numbers of patrons are drawn to the theatre on “Bank Night” in the hope of gaining the prize money and many additional admission tickets are sold which otherwise would not be sold. The patrons thus drawn to the theatre collectively furnish the prize money itself as well as a profit to the proprietors of the theatre. Such is the scheme known as Bank Night as disclosed by the information filed against the defendants. They were charged with conducting a lottery in operating the scheme on the date laid in the information.

The information was drawn under 1929 Comp. § 35-3803, being section 1 of Chapter 47 of Session Laws of 1889. This statute has been in force for more than fifty years and has been construed somewhat recently in City of Roswell v. Jones, supra; State v. Butler, 42 N.M. 271, 76 P.2d 1149; and Harriman Institute of Social Research, Inc., v. Carrie Tingley Crippled Children's Hospital, 43 N.M. 1, 84 P.2d 1088. Section 35-3803, the particular paragraph of the statute which the defendants are charged with violating, reads: “Whoever shall set up, draw, manage, or otherwise promote any lottery for money or any other thing of value, or dispose of, or promote the disposing of, any money or thing of value by way of lottery, or aid in committing any of said offenses, shall be fined five hundred to ten thousand dollars. (L. '89, Ch. 47, § 1; C.L. '97, § 1327; Code '15, § 1760.)”

Section 35-3804 prohibits the printing, vending, possessing, selling or offering for sale of lottery tickets. Section 35-3805 makes it an offense to permit any building, house or shop to be used for conducting a lottery or for the sale of lottery tickets; section 35-3806 inveighs against advertising lotteries or the sale of lottery tickets, while section 35-3807 applies all the penalties of the preceding sections to fictitious as well as to real lotteries. Finally, the last section, 35-3808, after using language designed to demonstrate the all embracing character of the preceding sections, whatever disguise may be adopted for the lottery attempted, excepts certain described lotteries under the conditions named when conducted at any fair for the benefit of any church, public library, or religious society, located in this state. The section reads: “The provisions of the five preceding sections shall be construed to apply to every device or devices and only to such device or devices as are commonly called or known as lottery, although designated or called by any other name, but shall not be construed to apply to any sale or drawing of any prize at any fair held in this state for the benefit of any church, public library or religious society, situate or being in this state, or for charitable purposes, when all the proceeds of such fair shall be expended in this state for the benefit of such church, public library, religious society, or charitable purposes. (L. '89, Ch. 47, § 6; C.L. '97, § 1332; Code ' 15, § 1765.)” (Emphasis ours.)

[1] As noted by this court in the Jones case, supra, we have no statutory definition of a lottery. The court there quoted approvingly from 38 C.J. 286, that text's definition of a lottery “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” [41 N. M. 258, 67 P.2d 290]. Whatever the form of the definition, and they are many, the test universally employed for detecting a lottery is the presence in the transaction of three elements, prize, chance and consideration. The absence of any one is fatal to identifying the transaction as a lottery. The presence of all three compels its characterization as such.

[2] The history of the statutory exception is discussed in both opinions filed in the Harriman case, supra. Unquestionably, it was the legislative purpose to lift the ban against small lotteries conducted at a fair whose entire proceeds were expended in this state for the benefit of a public library, church or religious society. Although there is in the exception itself no limitation on the size of the lottery which may be conducted under it for charitable or religious purposes, the very condition imposed confines them to petty lotteries. Remove the element of profit from a lottery and its size is greatly curtailed. There is here no claim that Bank Night is conducted for religious or charitable purposes.

Thus, the conclusion is compelled that if the scheme presented be a lottery and does not come strictly within the exception contained in the statute, it lies wholly within its interdiction. And so, we are brought right back to the decisive inquiry whether the scheme operated under the name of Bank Night is a lottery. The answer depends upon whether we find in it the disputed element of consideration, for as already noted, all parties agree that the other two essential elements, prize and chance, are present.

[3] Upon re-examination of the question, giving full weight to our former decision in City of Roswell v. Jones, we are strongly persuaded that the element of consideration is present and that the scheme known as Bank Night set forth in the information before us constitutes a lottery. See Analysis of Bank Night, Williams on Flexible Participation Lotteries, Ch. 12, §§ 207 to 214, pages 128 to 139. See, also, Id., Ch. 13, on question of consideration. In section 215 the author states: “The burden of the ‘bank night’ offensive is that its service to prospective patrons in registration, assignment of numbers, and the distribution of prizes by chance, is a free and gratuitous service and that its prizes are gifts and without consideration. This position is untenable. The object of this contention is to divorce the registration and offer of prizes by chance from the increase in gross...