State Ex Rel. v. Lynch , 192 Okla. 497 ( 1943 )

In my opinion where, as here, the operator of a theatre provides a registry in the outside foyer of the theatre and permits anyone, whether paid attendant of the show or not, to register free of charge and issues to each applicant what is termed a "box office insurance policy" and on designated nights one policy is selected by chance and redeemed without the holder having to purchase a ticket or be present in the theatre at the time of drawing, the holder having the right to appear in a reasonable time to claim such award, the scheme is not a lottery within the purview of 12 O. S. 1941 § 1051.

Section 1051, supra, provides in part as follows:

"A lottery is any scheme for the disposal or distribution of property by chance among persons who have paid, or promised, oragreed to pay any valuable consideration for the chance of obtaining such property or portion thereof, or for any share of or interest in such property, upon any agreement, understanding or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, a raffle, or a gift enterprise, or by whatever name the same be known."

There are three essential elements in a lottery: (1) The offering of a prize (present in this case), (2) the awarding of the prize by chance (also present in this case), and (3) the giving of a consideration or promising or agreeing to pay a consideration for an opportunity to win the prize (not present in this case).

Where a cash prize is given to the person whose name is drawn from a list of registrants or to the person who holds a number drawn by chance, such is not a lottery regardless of the profit derived by the operator through increased attendance where neither the registrants nor the winners are required to purchase admission tickets to the picture show; voluntary attendance at the drawing outside the theatre does not constitute consideration for the chance; something of value must be paid and hazarded by the registrant to supply the element of consideration. See People v. Cardas, 136 Cal. App. 80, 28 P.2d 99; Affiliated Enterprises, Inc., v. Rock-Ola Mfg. Corp., 23 F. Supp. 3; State v. Eames, 87 N.H. 477,183 A. 590; State v. Hundling, 220 Iowa 1369, 264 N.W. 608, 103 A. L. R. 861; State v. Horn (N.J.) 1 A.2d 51; Darlington Theatres v. Coker, 190 S.C. 282, 2 S.E.2d 782; People v. Psallis, 12 N.Y.2d 796, and other cases.

I think that the scheme in question amounts to nothing more than an advertising method which does not involve the elements of gambling and is not any more vicious than many admittedly lawful advertising practices to stimulate lawful business.

I, therefore, respectfully dissent.

I am authorized to say that GIBSON, V. C. J., and OSBORN and DAVISON, JJ., concur in the views herein set forth.