State v. McEwan

• Decision Date: 16 November 1938
• Docket Number: 35161
• Parties: The State, Appellant, v. R. W. McEwan
• Court: Missouri Supreme Court

120 S.W.2d 1098

343 Mo. 213

The State, Appellant, v. R. W. McEwan

No. 35161

Supreme Court of Missouri

November 16, 1938

In Banc.

R. W McEwan was prosecuted for making and establishing a lottery. A demurrer to the sufficiency of the information was sustained, and the State appeals.

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and Franklin E. Reagan, Assitant Attorney General, for appellant; F. E. Williams of counsel.

(1) The information is sufficient to charge the defendant with a violation of the lottery statute, Section 4314, Revised Statutes 1929. State v. Emerson, 1 S.W.2d 109; State ex rel. v. Hughes, 299 Mo. 529, 253 S.W. 229 28 A. L. R. 1305; State v. Becker, 248 Mo. 555, 154 S.W. 769. (2) Definitions of a Lottery. English. A scheme or device for distributing prizes by chance. Taylor v. Smetten, 11 Q. B. D. 207; Barclay v. Pearson, 2 Ch. 154; Coles v. Oldhams Press, Ltd., 180 L. T. J. 368. Federal. All schemes for the distribution of prizes by chance. Horner v. United States, 147 U.S. 458. Judicial. A distribution of prizes by chance among persons who have paid or agreed to pay a consideration. 38 C. J., p. 286, sec. 1. Monetary. A lottery wherein the consideration paid is money. 17 R. C. L. 1209; 38 C. J. 286; Worcester's Dictionary. Short Statutory. A scheme of distribution of property by chance to persons who have paid or agreed to pay a consideration. N. C. Penal Code, sec. 1370; Kan. R. S. 1923, sec. 21-1506; Minn. Stat. 1927, sec. 10209; Wash. Rem. R. S. sec. 2464. Long Statutory. A scheme for the distribution of property by chance along persons who have paid or promised to pay any valuable consideration for the chance (of obtaining such property or portion of it, or for any share or interest in such property, upon any agreement, understanding or expectation that it is to be distributed by chance by whatever name called. Okla. Stat. 1932, sec. 2310; Cal. P. C. 1931, sec. 319; Ind. Code, 1932, sec. 17-2401; Mont. R. C. 1921, sec. 11149; Nev. C. L. 1929, sec. 10176; N. Dak. C. L. 1913, sec. 9660; S. Dak. C. L. 1929, sec. 3894; Utah R. S. 1933, sec. 103-25-8. Missouri. A lottery is any scheme or device whereby anything of value is, for a consideration allotted by chance. State v. Emerson, 318 Mo. 633, 1 S.W.2d 111; State ex rel. v. Hughes, 299 Mo. 529, 253 S.W. 329, 28 A. L. R. 1305; State v. Becker, 248 Mo. 555, 154 S.W. 769. Lottery is a term of common usage; not one of common law. State v. Lipkin, 169 N.C. 264, 84 S.E. 340; State ex rel. v. Kansas Merc. Assn., 45 Kan. 351, 25 P. 984; Chancy Park Land Co. v. Hart, 104 Iowa 592, 73 N.W. 1059; Johnson v. State, 137 Ala. 101, 34 So. 1118. (3) Bank Night is a lottery; it awards a prize, by chance for a consideration. (a) The prize, $ 125. (b) The element of chance. People v. Rehm, 57 P.2d 238; 17 R. C. L. 1223; Thomas on Non-Mailable Matter, secs. 67, 26; People v. Lavin, 179 N.W. 164, 71 N.E. 753; Dillingham v. McLaughlin, 68 L.Ed. 742. (c) The consideration. State ex inf. v. St. Louis Union Trust Co., 74 S.W.2d 348; Thomas on Non-Mailable Matter, sec. 16, p. 35; Hudelson v. State, 94 Ind. 426; Brooklyn Daily Eagle v. Voorhies, 181 F. 581; George Washington Law Review, pp. 475, 491. Glover v. Malloska, 238 Mich. 216, 213 N.W. 107; State v. Danz, 250 P. 37, 140 Wash. 546; Society v. Seattle, 203 P. 21, 118 Wash. 258; Featherstone v. Independent Service Sta. Assn., 10 S.W.2d 124; State v. Bader, 24 Ohio N. P. (N. S.) 186, affirmed, 21 Ohio L. Rep. 293; Willis v. Young, 1 K. B. 448; City of Wink v. Griffith Amus. Co., 78 S.W.2d 1065; General Theaters v. Metro-Goldwyn Mayer D. Corp., 9 F.Supp. 549; Central States Theatre Corp. v. Patz, 11 F.Supp. 566.

S. P. Halpern and Fred Bellemere for respondent.

(1) To constitute a lottery either at common law or under the statute, Section 4314, Revised Statutes 1929, three elements are necessary, namely: (a) a prize; (b) determination of the winner of the prize by chance, and (c) payment of a consideration by the participant. State ex rel. v. Hughes, 229 Mo. 529; State v. Emerson, 318 Mo. 633; Bishopp on Statutory Crime (2 Ed.), sec. 952; 2 Bouvier's Law Dictionary, Rawle's Revision; 38 C. J., p. 286; Horner v. United States, 147 U.S. 449; United States v. Wallis, 58 F. 942; United States v. Purvis, 195 F. 618. (2) Since the defendant is charged with a felony created by the statute, it must be strictly construed and not enlarged by implication. ". . . It is not to be regarded as including anything not within its letter as well as its spirit, which is not clearly and intelligently described in the words of the statute, as well as manifestly intended by the Legislature." State v. Holder, 72 S.W.2d 489; State v. St. L.-S. F. Ry. Co., 238 Mo. 605, 142 S.W. 279. (3) The provisions of the Constitution, Article XIV, Section 10, and statute prohibiting lotteries were intended to suppress a particular kind of gambling as an evil. Bank Night does not involve the evil sought to be suppressed, and is not within either the letter or the spirit of the provisions. State of Iowa v. Hundling, 264 N.W. 608; Yellowstone Kit v. Alabama, 88 Ala. 196, 7 L. R. A. 599; 45 Harvard Law Review 1205; Post Publishing Co. v. Murray, 230 F. 773; Cross v. People, 18 Colo. 321, 32 P. 821, 36 Am. St. Rep. 292; People v. Cardas, 28 P.2d 99. (4) Under the advertising plan known as "Bank Night" and set forth in the information, the element of consideration, as contemplated by the definitions of a lottery, is lacking and the plan is therefore not a lottery. (a) The consideration required as an element of lottery is a consideration passing from the participant, and the participants in the Bank Night plan do not pay or hazard a consideration. State of Iowa v. Hundling, 264 N.W. 608; People v. Cardas, 28 P.2d 99; State of Tennessee v. Crescent Amus. Co., 95 S.W.2d 310; State of New Hampshire v. Eames, 183 A. 590; People v. Shafer, 289 N.Y.S. 649; Yellowstone Kit v. Alabama, 88 Ala. 196, 7 L. R. A. 599; People v. Mail Express Co., 179 N.Y.S. 640; Holt v. Rural Weekly Co., 217 N.W. 345; Denver v. Frueauff, 39 Colo. 20, 88 P. 329, 7 L. R. A. (N. S.) 1131; Williams Furniture Co. v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579, 57 A. L. R. 421; Society v. Seattle, 203 P. 22, 118 Wash. 258. (b) The consideration necessary to constitute a plan a lottery is more than the consideration necessary to support a simple contract. The consideration necessary to constitute a lottery is something of value passing from the participant in return for the right to participate. State of Iowa v. Hundling, 264 N.W. 608; State v. Shafer, 289 N.Y.S. 649; State of Tennessee v. Crescent Amus. Co., 95 S.W.2d 310; State of New Hampshire v. Eames, 183 A. 590; Commonwealth v. Wall, 3 N.E.2d 28. (c) The prerequisites to participation in the advertising plan known as "Bank Night" are conditions attached to respondent's offer to award a prize, and not in consideration of a promise to award a prize. 1 Williston on Contracts, p. 231, sec. 112; Williams Furniture Co. v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579; 45 Harvard Law Review 1206. (5) Since the information shows that no offense was committed, the defendant's demurrer was properly sustained and the case properly dismissed.

OPINION

Westhues, C.

The State's brief contains a fair statement of the case, which we adopt. It reads:

"This is a prosecution under Section 4314, Revised Statutes of Missouri 1929, for making and establishing a lottery known as 'Bank Night.' The Circuit Court sustained a demurrer to the sufficiency of the information, and the State prosecutes this appeal.

"The first paragraph of the information follows the language of the statutes and among other things alleges:

'. . . that R. S. McEwan . . . on the 18th day of June, 1935, at the County of Jackson, State of Missouri, did knowingly, willfully, feloniously and unlawfully make and establish as a business and avocation, a certain lottery and scheme of drawing in the nature of a lottery known as 'Bank Night,' whereby a large sum of money, to-wit, $ 125.00, was thereafter to be disposed of by lot and chance on said date. . . .'

"The remainder of the long information with special particularity and in detail describes the scheme of 'Bank Night' as set up and operated by the defendant at the Ashland Theatre in Kansas City, Missouri, for drawings on five successive weeks or 'bank nights' beginning with the night of May 21, 1935 and ending with the night of June 18, 1935 namely May 21, May 28, June 4, June 11 and June 18, 1935. The information is based upon the lottery set up June 18, for a drawing on 'bank night.'

"In substance the information alleges that the defendant in setting up and establishing 'Bank Night' furnished at the Ashland Theatre a registration book, a drawing box, and a quantity of numbered coupons or tickets, and certain advertising media for the screen and the front of the theatre. The registration book contained serial numbered lines and was installed in the outer lobby of the theatre for the registration of names and addresses of persons over the age of eighteen years who might be interested in a drawing. The coupons bore serial numbers corresponding to the serial numbers in the registration book. As names were registered opposite the numbers in the registration book, coupons or tickets bearing identical numbers were deposited in the drawing box. All persons over the age of eighteen years, including patrons, non-patrons and members of the public generally were invited to do two things:

"(1) To call at the theatre and register their names and addresses in the registration book at will and without charge.

"(2) To be present at the theatre, either...