State v. Lowe
| Decision Date | 10 December 1919 |
| Docket Number | 529. |
| Parties | STATE v. LOWE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Finley, Judge.
Mark Lowe was indicted for carrying on and promoting a lottery by means of a slot machine, and, being acquitted and discharged the State excepted and appeals. Reversed.
A "lottery," for all practical purposes, may be defined as a scheme for distribution of prizes, by lot or chance, by which one, on paying money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value or nothing, as some formula or chance may determine.
The operation of a so-called "merchandise vender," which was a slot machine holding a large number of cards in parallel columns, with glass in front and operated by pulling a lever whereby a card would be released, and the purchaser became entitled to an article of merchandise specified in the column, or in case of every twentieth number to a greater prize, held, the operation of a lottery, the device tending to promote the gaming instinct, notwithstanding the distribution of the prizes was according to a regular order for the purchaser could not know the order in which the cards would be withdrawn.
The jury returned a special verdict as follows:
"The defendant is a merchant in the city of Asheville, and used in connection with his business a machine called a 'merchandise vender,' which is so constructed as to hold a large number of cards in parallel columns and with a glass front. There are six of these columns of cards and each card calls for a particular article of merchandise and gives the price of such articles of merchandise. A prospective purchaser could purchase any of the articles of merchandise shown on such cards for the price stated thereon by pulling a slot which would remove such card from the machine. Six cards were displayed to a prospective purchaser, giving the articles and prices aforesaid, and the purchaser could draw out either of said six cards and obtain the articles of merchandise mentioned thereon by paying the price indicated on said card. As each card is drawn out, another card takes its place. In each instance the purchaser sees the card before it is withdrawn from the machine and knows the articles of merchandise called for and the price to be paid by him therefor, but until the card is withdrawn does not see the name of the article on the succeeding card. The machine operated by the defendant was arranged to vend collar buttons at 5 cents each, and all of the cards in said machine had the words 'collar buttons' and the figure and word '5 cents' printed thereon, with the exception of certain cards which had printed thereon the words 'one box of candy' and the figure and word '5 cents.' The cards were so placed in said machine that every twentieth card to be drawn therefrom called for a box of candy, while all the other cards called for a collar button, and the defendant advertised that every twentieth card in the case would entitle the purchaser thereof to a box of candy. As the cards are drawn from the machine, they are presented to the defendant, who gives the purchaser the article called for on such cards and collects from such purchaser the amounts stipulated on such cards. Each box of candy was worth 50 cents, but the price charged through the machine is 5 cents. The witness for the state went into the place of business of the defendant and to said machine, where he saw a card reading, 'One collar button, 5 cents,' and next to the machine he saw displayed in the showcase a large number of collar buttons, each of which were regularly retailed for 5 cents, which he was informed were the collar buttons called for on the cards in said machine. The state's witness then drew one card from said machine with the words and figure, 'One collar button 5 cents,' thereon, which he presented to the defendant, and thereupon received from the defendant one collar button and paid the defendant 5 cents. If upon the foregoing statement of facts the court be of the opinion that the defendant is guilty, the jury so finds; but, if upon the foregoing statement of facts the court be of the opinion that the defendant is not guilty, the jury so finds."
The court rendered the following judgment upon the verdict:
The state excepted and appealed.
James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
Mark W. Brown, of Asheville, for appellee.
WALKER, J. (after stating the facts as above).
It seems to us that the special verdict places this case alongside of those where we have held like schemes for making money by the lure of a chance to get something in exchange either for nothing, or for something of much less value. It is a direct, though in this case not a very artful, appeal to the gambling instinct. The object of this gift enterprise, or whatever you may call it, to evade the law against conducting lotteries, while sufficiently visible, is attempted to be concealed under the artful contrivance of a transaction having the false garb of simplicity and fair dealing; but the law denounces it all the same.
A "lottery," for all practical purposes, may be defined as any scheme for the distribution of prizes, by lot or chance, by which one, on paying money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value, or nothing, as some formula of chance may determine. This definition has generally been approved by the authorities. State v. Lipkin, 169 N.C. 265, 271, 84 S.E. 340, L. R. A. 1915F, 1018, Ann. Cas. 1917D, 137; State v. Perry, 154 N.C. 616, 70 S.E. 387, and cases cited; Long v. State, 74 Md. 565, 22 A. 4, 12 L. R. A. 425, 28 Am. St. Rep. 268. We could not better show the real character of this new device than to reproduce, to some extent, what we have heretofore substantially said about such attempts to circumvent the law against lotteries in State v. Perry, supra, and State v. Lipkin, supra: The sale of the ticket gave the purchaser the chance to obtain something more than he paid for it, and the other fact became an extra inducement for the purchase, making the general scheme more attractive and alluring. The difference between it and a single wager on the cast of a die is only one of degree. They are both intended to attract the player to the game, and have practically the effect of inducing others, by this easy and cheap method of acquiring property of value, to speculate on chances in the hope that their winnings may far exceed their investment in value. This is what the law aims to prevent in the interest of fair play and correct dealing, and in order to protect the unwary against the insidious wiles of the fakir or the deceitful practices of the nimble trickster. Call the business what you may, a "gift sale," "advertising scheme," or what not, it is none the less a lottery, and we cannot permit the promoter to evade the penalties of the law by so transparent a device as a mere change in style from those which have been judicially condemned, if the gambling element is there, however deep it may be covered with fair words or deceitful promises. If it differs from ordinary lotteries, it is chiefly in the fact that it is more artfully contrived to impose upon the ignorant and credulous, and is therefore more thoroughly dishonest and injurious to society. So far as those who manage schemes of this character can be supposed to give the credulous persons who deal with them any chance whatever of a return in greater value for their investment, the chance lies in the purchase of the right to participate in the favor offered or held out to tempt the gambling instinct, and thereby to prosper the business of the unlawful concern. All pay them money, at least in part, for the chance of winning a prize of greater or less value in proportion to what they hazard, however it may be glossed with some apparent safeguard against loss. Many will take the chance of the play, not expecting to continue the payments if they should lose at the first, second, or third attempt, or at some later period. According to every correct idea of legal definition or conception, this must be gaming within the meaning of the law, whether we construe it in letter or in spirit. All new artifices designed to evade and cheat the law, and entrap the unwary or ignorant, are but aggravations of the offense, and the more ingenious and deep-laid they are, the greater the wrong, citing Dunn v. People, 40 Ill. 465; Bell v. State, 37 Tenn. (5 Sneed) 507; Deflorin v. State, 121 Ga. 593, 49 S.E. 699, 104 Am. St. Rep. 177; State v. Moran, 48 Minn. 555, 51 N.W. 618; Meyer v. State, 112 Ga. 20, 37 S.E. 96, 51 L. R. A. 496, 81 Am. St. Rep. 17; State v. Clarke, 33 N.H. 329, 66 Am. Dec. 723.
The Austrian Bond Cases illustrate the idea of the law as to what is a lottery. It was said of the chance feature involved in their sale and purchase, by the court in Ballock v State, 73 Md. 1, 20 A. 184, 8 L. R. A. 671, 25 Am. St. Rep. 559, and approved by the highest federal court in Horner v. United States, 147 U.S. 449, 13 S.Ct. 409, 37 L.Ed. 237, that at some uncertain period determined by the revolution of a wheel of fortune, the purchaser of a bond does get his money...
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