State v. Perry

• Decision Date: 01 March 1911
• Citation: 154 N.C. 616,70 S.E. 387
• Court: North Carolina Supreme Court
• Parties: STATE . v. PERRY.

70 S.E. 387

154 N.C. 616

STATE .

v.PERRY.

Supreme Court of North Carolina.

March 1, 1911.

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

J. D. Perry was convicted of conducting a lottery, and he appeals. Affirmed.

The defendant was indicted for conducting a lottery. He, with the other members of the Perry-Owens Shoe Company, organized the Perry-Owens Suit Club, which engaged in the business of selling clothing under the following plan, as shown by the certificate given to each member of the club:

"Perry-Owens Shoe Company's Suit Club shall consist of fifty (50) members. In consideration of each member paying into the general fund the sum of two dollars ($2) weekly for twelve weeks, and one dollar ($1) the week following, or less as explained below, each and every member shall be then entitled to and shall receive from us a twenty-five dollar ($25) tailor-made suit or overcoat. Each and every Friday evening at 8 o'clock there shall be held at our store a drawing, and the member whose name is drawn at that time shall be entitled to his suit or overcoat immediately. After the thir teenth drawing every member having made all payments shall be entitled to his suit or overcoat immediately. Members' certificates are transferable; but upon the failure of any member to make his payments for two consecutive weeks, the permanent cancellation of this certificate shall be optional with us."

Under this arrangement, each member received a suit of clothes worth the full sum of $25, and there was no chance for any member to lose anything. Twelve of the 50 members received suits for less than $25. No tickets were issued, and nothing was paid by any member for any chance. All sums paid in were credited to the several accounts, and there was a fixed maturity value. Under this arrangement, the Perry-Owens Shoe Company received for each suit an average price of $22.12. Twelve suits were sold for $156, or $144 less than the selling price. There was evidence tending to show that the defendant actually conducted the business according to the plan set out in the certificate, and that several of the members received suits of clothes at much less than their value or their regular selling price, and the others paid full value for them. The defendant was convicted, and appealed.

W. D. Mclver and M. H. Allen, for appellant.

Attorney General Bickett and G. L. Jones, for the State.

WALKER, J. (after stating the facts as above). The only question in the case is whether the selling of the clothes according to the plan or device, which we have described, constituted a lottery, for our statute upon the subject provides, among other things, that any person who shall open, promote, or carry on a lottery, by whatever name or style the same may be called or known, or who, by such way and means, shall expose or set to sale any goods or chattels or any other thing of value, shall be guilty of a misdemeanor. Lotteries are a species of gaming. They were formerly permitted in some of the states, and even established and licensed by law, as a means of raising money for worthy objects, but their evils were so widespread both in the woes inflicted on the weak-minded and credulous who were induced to buy chances in them, to be followed by bitter disappointment, and in their baneful influence on those, termed lucky, who drew prizes, that later, under the influence of a healthier public sentiment, they were generally forbidden. Bishop on Statutory Crimes (2d Ed.) § 951, where also we find a lottery defined as a scheme whereby one in 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. In our case the prospect of securing nothing is wanting, but this makes the scheme the more enticing. A definitionwhich also has been generally accepted and which fits the facts disclosed in the record is this: "A sort of gaming contract, by which, for a valuable consideration, one may by favor of the lot obtain something in return of a value superior to the amount or value of that which he risks." U. S. v. Olney, 1 Abb. 275, Fed. Cas. No. 15, 018; Bishop on Stat. Crimes (2d Ed.) § 952, and note 2. In Hull v. Ruggles, 56 N. Y. 424, the court adopts the following as the result of the approved definitions: " 'Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery.' This definition is approved in Wilkinson v. Gill, 74 N. Y. 63, 30 Am. Rep. 264, as the popular meaning of the word, and one proper to be adopted with a view of remedying the mischief intended to be prevented by the statutes prohibiting lotteries; and it is said: 'Every lottery has the characteristics of a wager or bet, although every bet is not a lottery.'" Yellow-Stone Kit v. State, 88 Ala. 199, 7 South. 338, 7 L. R. A. 599, 16 Am. St. Rep. 38. See, also, Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171; State v. Mum-ford, 73 Mo. 647, 39 Am. Rep. 532; Meyer v. State, 112 Ga. 20, 37 S. E. 96, 51 L. R. A. 496, 81 Am. St. Rep. 17; McLain's Cr. Law, § 1315; 25 Cyc. 1633; 5 Words and Phrases, p. 4245. In Reg. v. Harris, 10 Cox's Cr. Cases, 352, it is said not to...