State v. Wilson, No. 59.

Docket NºNo. 59.
Citation196 A. 757
Case DateFebruary 01, 1938
CourtUnited States State Supreme Court of Vermont
196 A. 757

STATE
v.
WILSON.

No. 59.

Supreme Court of Vermont Addison.

Feb. 1, 1938.


196 A. 758

Exceptions from Addison Municipal Court; Leroy C. Russell, Municipal Judge.

A complaint was filed by the State of Vermont against Carroll T. Wilson charging him with setting up and promoting a lottery. The defendant demurred, and demurrer was sustained pro forma, and the State excepted.

The cause was passed to the Supreme Court before final judgment, the pro forma ruling reversed, the complaint adjudged sufficient, and the cause remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

John T. Conley, State's Atty., of Middlebury, for the State. Wayne C. Bosworth, of Middlebury, for respondent.

MOULTON, Justice.

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 signification, 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

196 A. 759

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, and who is not acting in fraud of his creditors, may not make a gratuitous distribution of his money or property by chance. But where the privilege of participation in a drawing for a prize is made dependent upon the purchase of a ticket of admission to a theatre, the transaction is a lottery, because the price of the ticket includes not only the right to attend the entertainment, but also the chance to win the prize, and a valuable consideration has been paid. People v. Miller, 271 N.Y. 44, 2 N.E.2d 38, 39; Sproat-Temple Theatre Corp'n v. Colonial Theatrical Enterprise, 276 Mich. 127, 267 N.W. 602, 603; Society Theatre v. City of Seattle, 118 Wash. 258, 203 P. 21, 22; Shanchell v. Lewis Amusement Co., La. App., 171 So. 426, 428. Whether the scheme is no less a lottery when the purchase of a ticket is not required, and the drawing is open to those registrants who have paid no admission, as well as to those who have, is a question upon which the authorities are not harmonious. This sort of operation, sometimes called "Bank Night," is identical with the "Cash Nite" described in the complaint. It is said in Commonwealth v. Wall, Mass., 3 N.E.2d 28, 30: "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. * * * So here the test is not whether it was possible to win without paying for admission to the theatre. The test is whether that group who did pay for admission were paying in part for the chance of a prize." In Iris Amusement Corporation v. Kelly, 366 Ill. 256, 8 N.E.2d 648, 653, the court said: "We may look at this thing realistically and sensibly. We know that those within the theater pay for any chance any one outside may have to win." And in State ex rel. Hunter, Atty. Gen'l. v. Fox Beatrice Theatre Corp'n, Neb., 275 N.W. 605, 606: "They [the purchasers of tickets] made a contribution to increased income out of which a prize could be paid, a fund created by many to be drawn by the holder of a single lucky number on a tiny card. This contribution, under the practical operation of 'bank night,' is the consideration actually paid * * * for a chance for a prize and it is no less effective for that purpose because large numbers of registrants do not pay for theater tickets or occupy seats at the drawing. The prize offered to a registrant without a theater ticket, if he can personally claim it within two minutes after the drawing, though outside at the time, is a cloak to hide an evil design and to evade or cheat the law." Willis v. Young and Stembridge, 1907, 1 K.B. 448, is an illustration of the same principle. The proprietors of a weekly newspaper made a gratuitous distribution of medals, each bearing a distinctive number, and the words "keep this, it may be worth £100. See the Weekly Telegraph today." The paper was sold for one penny, and a medal was never given at the same time as the sale. The production of a paper was not required as a condition to the receipt of the prize, which was awarded to the winning numbers selected arbitrarily by an employee of the paper. The names of those who had secured the prizes were published in the paper, and the object of the distribution of the medals was to induce the recipients to purchase copies of the paper, and the circulation was thereby increased. It was held at pages 454, 455 of 1 K.B., that the money for the prizes came out of the receipts, and these, in turn, came to a considerable extent from the purchasers of the paper. The recipients of the medals, therefore, contributed collectively (though each individual may not have contributed) sums of money from which the profits of the newspaper and the prize money was derived. If the scheme had been to deliver a medal with each copy of the paper to the person buying it, it would have been a lottery, and the mischief was the same under the facts of the case.

Among the decisions adopting this view are City of Wink v. Griffith Amusement Co., Tex.Sup., 100 S.W.2d 695, 699; State v. Danz, 140 Wash. 546, 250 P. 37, 48 A.L.R. 1109; State ex rel. Beck v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, 109 A.L.R. 698, 708; Glover v. Malloska, 238 Mich. 216, 213 N.W. 107, 108, 52...

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  • American Broadcasting Co. v. United States
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 1953
    ...the yield to the operator is surely all important. And this is recognized in the well reasoned cases, such as State v. Wilson, 109 Vt. 349, 196 A. 757, cited If the issue can thus be made comparatively simple, why has so considerable an amount of concern, if not confusion, developed in the ......
  • Albert Lea Amusement Corp. v. Hanson, No. 35116
    • United States
    • Supreme Court of Minnesota (US)
    • June 23, 1950
    ...v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695; Cole v. State, 133 Tex.Cr.R. 548, 112 S.W.2d 725; State v. Wilson, 109 Vt. 349, 196 A. 757; State ex rel. Cowie v. La Crosse Theatres Co., 232 Wis. 153, 286 N.W. 707; Stern v. Miner, 239 Wis. 41, 300 N.W. 738. Contra: State v. Horn, 16......
  • Affiliated Enterprises, Inc. v. Waller
    • United States
    • Superior Court of Delaware
    • March 14, 1939
    ...188 S.E. 925; Barker v. State, 56 Ga.App. 705, 193 S.E. 605; Maughs v. Porter, 157 Va. 415, 161 S.E. 242; State v. Wilson, 109 Vt. 349, 196 A. 757. See generally Williams, Flexible Participation Lotteries; Thomas, Lotteries, Frauds and Obscenity in the Mails, 35. In some states it is held t......
  • Little River Theatre Corp. v. State Ex Rel. Hodge
    • United States
    • United States State Supreme Court of Florida
    • January 20, 1939
    ...Dist. Corp., D.C.Colo., 9 F.Supp. 546; Affiliated Enterprises, Inc. v. Gantz, 10 Cir., 86 F.2d 597; State v. Wilson, 109 Vt. 349, 196 A. 757; State v. Danz, 140 Wash. 546, 250 P. 37, 48 A.L.R. 1109; [185 So. 861] Society Theatre v. City of Seattle, 118 Wash. 258, 203 P. 21. The decisions of......
  • Request a trial to view additional results
14 cases
  • American Broadcasting Co. v. United States
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 1953
    ...the yield to the operator is surely all important. And this is recognized in the well reasoned cases, such as State v. Wilson, 109 Vt. 349, 196 A. 757, cited If the issue can thus be made comparatively simple, why has so considerable an amount of concern, if not confusion, developed in the ......
  • Albert Lea Amusement Corp. v. Hanson, No. 35116
    • United States
    • Supreme Court of Minnesota (US)
    • June 23, 1950
    ...v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695; Cole v. State, 133 Tex.Cr.R. 548, 112 S.W.2d 725; State v. Wilson, 109 Vt. 349, 196 A. 757; State ex rel. Cowie v. La Crosse Theatres Co., 232 Wis. 153, 286 N.W. 707; Stern v. Miner, 239 Wis. 41, 300 N.W. 738. Contra: State v. Horn, 16......
  • Affiliated Enterprises, Inc. v. Waller
    • United States
    • Superior Court of Delaware
    • March 14, 1939
    ...188 S.E. 925; Barker v. State, 56 Ga.App. 705, 193 S.E. 605; Maughs v. Porter, 157 Va. 415, 161 S.E. 242; State v. Wilson, 109 Vt. 349, 196 A. 757. See generally Williams, Flexible Participation Lotteries; Thomas, Lotteries, Frauds and Obscenity in the Mails, 35. In some states it is held t......
  • Little River Theatre Corp. v. State Ex Rel. Hodge
    • United States
    • United States State Supreme Court of Florida
    • January 20, 1939
    ...Dist. Corp., D.C.Colo., 9 F.Supp. 546; Affiliated Enterprises, Inc. v. Gantz, 10 Cir., 86 F.2d 597; State v. Wilson, 109 Vt. 349, 196 A. 757; State v. Danz, 140 Wash. 546, 250 P. 37, 48 A.L.R. 1109; [185 So. 861] Society Theatre v. City of Seattle, 118 Wash. 258, 203 P. 21. The decisions of......
  • Request a trial to view additional results

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