State v. Lipkin

• Decision Date: 24 February 1915
• Docket Number: 57.
• Citation: 84 S.E. 340,169 N.C. 265
• Parties: STATE v. LIPKIN.
• Court: North Carolina Supreme Court

84 S.E. 340

169 N.C. 265

STATE v. LIPKIN.

No. 57.

Supreme Court of North Carolina

February 24, 1915

Appeal from Superior Court, Edgecombe County; Ferguson, Judge.

Chas G. Lipkin was convicted of conducting a lottery, and he appeals. Affirmed.

Laws for the protection of the health, morals, and safety of society within the police power should be given such a construction as will suppress the mischief aimed at.

The prisoner was indicted in the court below for conducting a lottery in violation of Revisal, § 3726, which provides that it shall be unlawful to open, set up, promote, or carry on a lottery, publicly or privately, by any name or style, or by such ways and means expose to sale any real or personal property therein described, or goods or chattels, or anything of value whatsoever, and imposing a fine or imprisonment as the punishment for the offense as a misdemeanor. It also provides that any person who engages in disposing of any species of property whatsoever, money, or evidences of debt or in any manner distributes gifts or prizes upon tickets or certificates sold for that purpose, shall be subject to prosecution under that section. The following is a copy of the contract referred to in the testimony of Mrs. Emma Jacobs, who first got a wardrobe under a similar contract, and afterwards contracted for a sewing machine by this instrument:

"Mutual Supply Company, Incorporated.

Authorized capital, $25,000.

Furniture rugs, jewelry, etc. Complete house furnishers. Direct from factory to home. The $17.50 Furniture Society. Corner Ninth and Broad streets, Richmond, Va. Entrance 214 North Ninth street. When calling on us, bring this contract with you.

Mutual Supply Co., Inc. Contract No. 4473.

We hereby agree to sell to the holder of this contract, Mrs. Emma Jacobs, and said party agrees to purchase a sewing machine or any one of the articles enumerated on the next page for the sum of $17.50 on the following terms and conditions: Each customer agrees to pay 25 cents per week until the sum of $17.50 has been paid, or until their name is selected by the company as an advertising medium. In order to advertise our business on a broader principle, we will distribute among our patrons each week several pieces of furniture. Patrons who are selected to receive the furniture will not be required to make any further payments, and will then be entitled to receive their furniture at once, providing their payments have been made regularly.

No method of any kind dependent upon or connected with chance in any form whatsoever, enters into this contract. We do not authorize agents to make statements or arrangements, verbal or otherwise, to add, change or erase the terms of this contract.

No money can be lost by lapsing, as the amount paid in can be applied at any time to the purchase of any $17.50 article. The furniture which is distributed each week is given solely for advertising purposes and the Mutual Supply Co., Inc., reserves the right to make the selection in such a manner as it considers best for the benefit of the business. The consideration of twenty-five cents paid on receipt of this contract shall constitute a full acceptance of the terms and conditions mentioned herein.

Each contract will entitle the holder to a separate article unless by special agreement in office. No money refunded if discontinued.

Partly filled contract bought or loaned from others cannot be used for redemption of articles enumerated herein.

I have read this contract before signing same and am acquainted with its contents and as evidence that I understand and fully agree to the printed terms of this contract, I make my first payment.

Signature: Emma Jacobs.

Address: Tarboro, N. C."

Attached to the contract was a card, so arranged with blank spaces as to enter therein the payments made in each week to the number of 70, which would be $17.50 by addition of the weekly payments. There is also shown on the back of this paper a list of the articles of furniture (value $17.50 each) to be selected from by the ticket holders, and a copy of the contract or substantial portions thereof, for the company, with a similar card for entering payments on the back. On each contract are these entries at the bottom: "When calling on us, bring this contract with you. Pay to agent only first payment. Our authorized collector will call weekly"--and the title of the concern, as follows: "Mutual Supply Company, Incorporated. Authorized capital $25,000.00. Furniture, rugs, jewelry, etc. Complete house furnishers. Direct from factory to home. The $17.50 Furniture Society, Corner Ninth and Broad streets, Richmond, Va. Entrance 214 North Ninth street. No other but the stipulated terms in this contract will be recognized."

Mrs. Emma Jacobs, a witness for the state, testified:

"I live in Tarboro. Mr. Lipkin, the defendant, came to see me last March. Said he was from Richmond; that he wanted to get up a club to establish his furniture. I signed contract for wardrobe. (Admitted to be identical with 4473, taken also by this witness.) Defendant collected 25 cents each week, and I was to get wardrobe. I was going away and paid $2.25 in advance, and he said this would be all right. He (defendant) never said anything, just said he didn't know when my name would be called out. I did not get away, and I received card saying my wardrobe was here. I think wardrobe was worth $25. I paid $3.75 in installments. I took out other contracts to get sewing machine and sideboard. I paid installments to Mr. Lipkin. I can't say how many came to see my sideboard, so many did. I was in my room. Mr. Lipkin came in and asked me if I did not want to join the club, and told me how it worked; that he did not know when my name would be called, and I would pay 25 cents a week until it was called, and, when I thought I was going away, I paid in advance. He said I would have to pay until my name was called out. It might be a long time, or a short time. I expected to have to fill my card clean out; that is, pay $17.50. I received notice from Richmond that my name had been called out, and then received wardrobe and paid in $3.75. Mr. Lipkin came to my house every Monday to collect. I don't remember any conversation, except he would just come and say for me to pay. I was perfectly satisfied with furniture I got. A good many people came there to see my furniture. I understood, if I got others to join, I would get piece of furniture. They told me, if I got piece, others would join. Others came and saw my piece and said they were going to join. I stopped paying after Mr. Lipkin was indicted, because I thought I was going away. I was perfectly satisfied, and have heard no one complain."

Oscar Lloyd, witness for the state, testified:

"I am a barber, single man, and live in Tarboro. I signed that contract of Mutual Supply Company, No. 4492, for the purchase of a brass bed at $17.50. (It is admitted this contract is identical with No. 4473, of Emma Jacobs.) Mr. Lipkin did not get me to sign, but he came round to collect. Mr. Lipkin, when I asked him, said I would have to pay until I got something. If I got out, I would lose what I had paid in. I paid in 75 cents--three installments. I have never gotten anything. I stopped paying because I thought I was not going to get anything. No one told me to stop. I expected to get something if I stayed in. I stopped because I got tired paying in and not getting anything."

R. B. Hyatt, witness for the state, testified:

"I am sheriff of Edgecombe, and I know the defendant. He told me that he was representing a furniture house in Richmond. I told him a drawing like that was a violation of law. He said he was going to try it, and that it was an advertising scheme. He went on for some time before I arrested him. He said some of the members were to be drawn out each week. He was arrested June 11th. At the trial before the recorder, when he was convicted, it was understood there would be no new contracts, but collections would be made on the contracts existing, and everybody was to act in good faith pending the appeal in this case. I can't be positive he said 'selection' or 'drawing.' 'Selection' might have been his word; I don't recall. I know one was to come off every week, but I don't recall if it was a drawing or selection."

The state rested its case.

Defendant moved to dismiss the action or for judgment of nonsuit, under chapter 73, Acts 1913. Motion denied. Defendant excepted.

Mr. Abrams, only witness of defendant, testified:

"I live in Richmond, Va. I am office manager of the Mutual Supply Company. I have been with them one year. I am familiar with their manner of doing business. Many thousands of dollars worth of stock is kept on hand. When an agent sells a contract, it is executed in duplicate. One copy is left with purchaser, and the original is filed. I have charge of them. In selections of furniture to be given members, there is no drawing of any kind. The selection is made in the following way: Many pieces of furniture are given away. For instance if Mrs. Jacobs benefits the company, she receives her piece of furniture. We receive information from our agents if customers are benefiting business. The agent soliciting the trade keeps a record, which is filed with company, showing what benefit customer is to business, and, when furniture is given, we expect her to recommend her friends. Emma Jacobs gave us several names and her friends bought furniture. That is the advertising feature spoken of in contract, and she was selected for reason of advertisement. The article furnished Emma Jacobs was worth $17.50. Mr. Lipkin, the defendant, is our local collector. He got those contracts. I did not say Emma Jacobs got a $25 wardrobe for $3.75. I...