State v. Wilson

• Decision Date: 01 February 1938
• Docket Number: 59
• Parties: STATE v. CARROLL T. WILSON
• Court: Vermont Supreme Court

196 A. 757

109 Vt. 349

STATE v. CARROLL T. WILSON

No. 59

Supreme Court of Vermont

February 1, 1938

January Term, 1938.

"Bank Night" as Lottery---Lottery Defined---Lottery Where Participation in Drawing for Prize Dependent on Purchase of Theater Ticket---Effect on Lottery of Admitting Some of Participants Free---"Bank Night" or "Cash Nite" Scheme Held Lottery---Detriment Incurred by Promisee as Consideration---Acts of Participants in "Cash Nite" Scheme as Detriment---"To Pay Consideration" Defined---Consideration Sufficient to Support Contract as Effective to Establish Lottery---Detriment Not Always Consideration---Necessity of Determining Whether Acts Required of Participants in "Cash Nite" Scheme Condition or Consideration---Offer Defined---Condition and Consideration Distinguished---Test of Consideration---Advertising Schemes as Lotteries---Acts of Participants in "Cash Nite" Scheme as Consideration---Effect of Promisor's Motive on Status as Lottery---Complaint as to "Cash Nite" Scheme Held Sufficient to Charge Promotion of Lottery.

1. The word "lottery" as used in P. L. 8683, providing penalty for promotion of a lottery, has no technical meaning distinct from its popular meaning, and may be defined as a scheme whereby one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them.

2. Person who is sui juris, and not acting in fraud of creditors, may make gratuitous distribution of his money or property by chance, but where privilege of participation in drawing for prize is made dependent upon purchase of ticket of admission to theater, transaction is a lottery, because price of ticket includes not only right to attend entertainment but also chance to win prize, and a valuable consideration has been paid.

3. A game does not cease to be a lottery because some, or even many of the players are admitted to play free, so long as others continue to pay for their chances.

4. Scheme known as "Bank Night" or "Cash Nite" whereby prize is given at theater to person whose name appears on card drawn by chance is a lottery, though any one writing name on card and depositing it in registration box kept in lobby of theater is eligible to receive prize without purchasing ticket of admission or paying any money for privilege of participating in the draw if he appears in theater to claim prize within one minute after result of draw is announced, since purpose of scheme is to induce people to purchase tickets of admission and attend theater, and those who attend are paying in part for chance of prize.

5. Ordinarily, detriment incurred by promisee at request of promisor is sufficient consideration to support a contract.

6. In operation of "Cash Nite" scheme acts of registration, attendance in immediate vicinity of theater, or in lobby thereof, on evening appointed for draw, and entry within stipulated time after result of draw was announced were acts done and detriment incurred in response to promise to award prize to registrant whose name should be drawn.

7. To pay a consideration, as used in definition of lottery, is to furnish or give a consideration and may be taken to include doing of an act or exercise of a forbearance.

8. Any consideration which would be sufficient to support a contract will be equally effective to establish a lottery if given in return for chance to win prize.

9. Existence of a detriment to promisee is not, in all cases determinative of existence of consideration, since detriment may be nothing but condition precedent to performance of promise.

10. In considering whether allegations in complaint against one operating "Cash Nite" scheme in connection with theater were sufficient to establish that scheme was lottery it was necessary to determine whether respondent's offer of prize was gratuitous promise to be performed upon happening of condition, or promise for which requested acts on part of participants, that they should write their names on cards and deposit them in box kept in lobby of theater and that person whose name was drawn should appear in theater to claim prize within one minute after result was announced there, were dealt with by parties as consideration, with element of bargin or agreed exchange present.

11. An offer is a conditional promise, that is, a promise to take effect only if exchange demanded for it is given.

12. The same thing stated as condition of promise may or may not be consideration, according as reasonable man would or would not understand that performance of condition was requested as price or exchange for promise.

13. If happening of condition will be benefit to promisor, it is fair-inference that happening was requested as consideration but if it will be of no benefit to promisor and is obviously merely for purpose of enabling promisee to receive gift happening of the event though brought about by promisee in reliance on promise will not properly be interpreted as consideration.

14. Where promoter of business enterprise, with evident design of advertising his business and thereby increasing his profits, distributes prizes to some of those who call upon him or his agent, or write to him or his agent, or put themselves to trouble or inconvenience, even of slight degree, or perform some service at request of or for promoter, the parties receiving prize to be determined by lot or chance, a sufficient consideration exists to constitute the enterprise a lottery though promoter does not require payment of anything to him directly by those who hold chances to draw prizes.

15. Acts of registration and attendance in lobby or just outside theater by those participating in "Cash Nite" scheme were, or might reasonably have been expected to be, a benefit to operator of theater in increasing attendance, hence it was fair inference they were requested as consideration for promise to give prize and there was consideration sufficient to support a contract otherwise legal.

16. Motive of promisor and consideration for promise are distinct and neither can take place of other, and motive of respondent charged with promoting lottery was important only as bearing upon interpretation of his offer and in deciding whether what he requested participants to do was to be merely condition upon which he would perform his promise, or consideration for that promise.

17. In prosecution under P. L. 8683 for promoting lottery, operation of "Cash Nite" scheme as described in complaint, embracing elements of chance, prize and consideration, held on exception to sustaining of demurrer to constitute lottery, though it was not alleged that any one purchased ticket of admission to theater on evening when drawing was held there.

COMPLAINT under P. L. 8683 for promoting lottery. The respondent demurred. Hearing on the demurrer in Addison municipal court, Leroy C. Russell, Municipal Judge. Demurrer sustained, pro forma. The State excepted. The cause was passed to Supreme Court before final judgment as provided by P. L. 2425. The opinion states the case.

The pro forma ruling is reversed. The complaint is adjudged sufficient and the cause is remanded.

John T. Conley, State's attorney, for the State.

Wayne C. Bosworth for the respondent.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

MOULTON

The respondent demurred to a complaint charging him with setting up and promoting a lottery in contravention of P. L. 8683. The demurrer was sustained, pro forma, and the State excepted. The cause was passed to this Court before final judgment, as provided by P. L. 2425.

The complaint was originally in two counts, but the first of these was waived below. The second count alleges in substance that the respondent, as manager and operator of the Campus Theatre, in Middlebury, set up and promoted a scheme known as "Cash Nite," which was conducted as follows: The members of the public were invited to write their names upon cards provided for the purpose and to deposit the cards in a registration box placed in the lobby of the theatre, and it was advertised that upon a certain day a drawing would be had, and a prize of $ 70 would be given to the person whose name was on the card drawn, provided such person should appear within the theatre within one minute after the result was announced and claim the prize, failing which the sum of $ 20 would be added to the prize and another drawing would take place upon a later day. No charge was made for registration, and every person who registered was entitled to participate in the drawing without being required to attend the performance given in the theatre, purchase a ticket of admission or pay any money. Under these conditions large numbers of persons registered their names; the drawing was publicly held in the theatre on the appointed evening; a name was drawn and announced from the aisle within the theatre, and the person whose name was drawn, if in the lobby, or outside the theatre, would be permitted to enter therein to claim and receive the prize.

The issue raised by the demurrer is whether the foregoing facts, as stated in the complaint, constitute the setting up and promotion of a lottery.

P. L. 8683 does not describe a lottery. The word "has no technical meaning distinct from its popular meaning, and may be defined as a scheme whereby one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them." State v. Williams, 108 Vt. 7, 9, 182 A. 202, 203; State v. Wersebe, 107 Vt. 529, 532, 181 A. 299. There are here, it is admitted, sufficient allegations of chance and prize; the question of consideration is the only one before us.

There is, of course, no legal reason why a person who is sui juris,...