State v. Danz , 140 Wash. 546 ( 1926 )

I can not concur in the argument or conclusion of the foregoing majority opinion. While I do not disagree with the statement of the facts made by Judge Mitchell, I feel that they should be stated somewhat more elaborately.

Appellant Danz was the owner of a moving picture theatre in Seattle. Appellant Maine was associated with Danz to the extent of being connected with the distribution of goods by chance from the stage of the theatre one evening each week as a part of the entertainment of that evening. The goods so distributed were collected by Maine from various stores or concerns of the city, the owners of which donated the goods, and whose compensation for the donations was the advertising derived from such distribution of the goods and having their names favorably mentioned by Maine as the donators, as the goods were distributed by him from the stage of the theatre. Each person who received goods by the distribution did so by lot and chance, obtaining the chance by receiving a numbered ticket, their chance right to receive goods being determined by the drawing of a duplicate numbered ticket by a boy upon the stage from a receptacle containing such duplicate numbered tickets. Each theatre patron, upon paying the regular admission price to the theatre, was given one of the numbered chance tickets. Appellants also offered free numbered chance tickets to anyone who would ask for them, though such person should not purchase an admission ticket to the theatre. This offer was evidenced by a placard put up in a conspicuous place at the front of the theatre. The placard was approximately nine by eleven inches in size, having upon its face in plain, large letters these words:

"Tickets for drawing free. Not necessary to purchase admission tickets to theatre."

Persons receiving numbered chance tickets, without the purchase of admission tickets to the theatre, would have exactly the same right to receive goods upon the drawing and distribution as those who purchased admission tickets to the theatre and were in the theatre audience at the time of the drawing and distribution. Upon the drawings being made on the stage of the theatre, each number as drawn would be announced therefrom and anyone in the audience responding and producing the duplicate numbered ticket would have some goods given to him by Maine, who would announce the name of the store or concern donating the particular goods then given to the holder of that ticket. If no response came from anyone in the audience producing the duplicate ticket, announcement would be made outside in front of the theatre of the lucky number drawn, and anyone holding the duplicate ticket, though outside the theatre, would have the right to enter the theatre and receive goods the same as if he had been sitting in the audience inside the theatre. Thus, the holder of any chance numbered ticket who had purchased a regular admission ticket to the entertainment did not, as holder of such chance numbered ticket, have any superior right or chance over an outsider receiving a chance numbered ticket free of cost to him. The evidence does indicate that no outsider asked for or received any chance ticket, but that all outsiders were publicly and conspicuously offered such tickets is clear.

Our statute, being Rem. Comp. Stat., § 2464 [P.C. § 8965], which, it is insisted by the prosecution, appellants violated, reads as follows:

"A lottery is a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether it shall be called a lottery, raffle, gift enterprise, or by any other name, and is hereby declared unlawful and a public nuisance.

"Every person who shall contrive, propose or draw a lottery, or shall assist in contriving, proposing or drawing a lottery, shall be punished by imprisonment in the state penitentiary for not more than five years, or by a fine of not more than one thousand dollars, or by both."

Nothing could seem plainer than that, to render a person guilty of this statutory crime, he must have caused the person acquiring the chance to have paid, or agreed to pay, a valuable consideration for the chance. This is not only made plain by the express definition of the word "lottery" embodied in this statute, but also seems to be the well-settled law in the United States generally, where the meaning of the word "lottery," as used in the various state statutes, is left to be determined in the light of its usual popular meaning. In the leading case of YellowstoneKit v. State of Alabama, 88 Ala. 196, 7 So. 338, 16 Am. St. 38, 7 L.R.A. 599, in the course of a learned discussion touching this subject, Justice Somerville, speaking for the court, said:

"It may be safely asserted, as the result of the adjudged cases, that the species of lottery, the carrying on of which is intended to be prohibited as criminal by the various laws of this country, embraces only schemes in which a valuable consideration of some kind is paid, directly or indirectly, for the chance to draw a prize. United States v. Olney, 1 Deady, 461, 1 Abb. (U.S.) 275; Almshouse v. American Art Union, 7 N.Y. 228;Ehgrott v. New York, 96 N.Y. 264, 48 Am. Rep. 622; Bell v.State, 5 Sneed, 507; Com. v. Thacher, 97 Mass. 583.

"There is no law which prohibits the gratuitous distribution of one's property by lot or chance. If the distribution is a pure gift or bounty, and not in name or pretense merely, which is designed to evade the law, — if it be entirely unsupported by any valuable consideration moving from the taker, — there is nothing in this mode of conferring it which is violative of the policy of our Statutes condemning lotteries or gaming. . . .

"The cases on this subject are very numerous, and while the courts have shown a general disposition to bring within the term `lottery' every species of gaming involving a distribution of prizes by lot or chance, and which comes within the mischief to be remedied, — regarding always the substance and not the semblance of things so as to prevent evasions of the law, — we find no decision in which the element of a valuable consideration parted with, directly or indirectly, by the purchaser of a chance, does not enter into the transaction. Buckalew v. State, 62 Ala. 334; State v. Bryant,74 N.C. 207; Com. v. Wright, 137 Mass. 250, 50 Am. Rep. 306;State v. Clarke, 33 N.H. 329, 66 Am. Dec. 723; State v.Shorts, 32 N.J.L. 398, 90 Am. Dec. 668; Wilkinson v. Gill,74 N.Y. 63, 30 Am. Rep. 264; Almshouse v. American Art Union,7 N.Y. 228; State v. Mumford, 73 Mo. 647; Hull v. Ruggles,56 N.Y. 424; Thomas v. People, 59 Ill. 160; Dunn v. People,40 Ill. 465; Seidenbender v. Charles, 4 Serg. R. 151, 8 Am. Dec. 682; United States v. Olney, 1 Deady, 461; Bell v. State, 5 Sneed, 507; Bishop, Stat. Crimes, 2d ed. § 952; 2 Whart. Crim. Law, 9th ed. § 1491."

The decision in Cross v. People, 18 Colo. 321, 32 P. 821, 36 Am. St. 292, is a well considered one of particular interest in our present inquiry, wherein Justice Goddard, speaking for the court, said:

"The gratuitous distribution of property by lot or chance, if not resorted to as a device to evade the law, and no consideration is derived, directly or indirectly, from the party receiving the chance, does not constitute the offense. In such case the party receiving the chance is not induced to hazard money with the hope of obtaining a larger value, or to part with his money at all; and the spirit of gambling is in no way cultivated or stimulated, which is the essential evil of lotteries, and which our statute is enacted to prevent. By the admitted facts it is shown that the plaintiffs in error gave business cards, which entitled the holders to a chance in a piano, to be distributed as the holders of such chances might elect. These tickets or chances were given indiscriminately to persons, whether they purchased goods of plaintiffs in error or not, to those who registered their names at their shoe store, and to those who, from a distance, sent the return postage. While it is admitted that Charles Linton purchased goods to the amount of one dollar at their store, and received one of these cards, it is admitted that such purchase, or any purchase of goods, was not a condition upon which the card was delivered. The fact that such cards or chances were given away to induce persons to visit their store with the expectation that they might purchase goods, and thereby increase their trade, is a benefit too remote to constitute a consideration for the chances. Persons holding these cards, although not present, were, equally with those visiting their store, entitled to draw the prize. The element of gambling that is necessary to constitute this a lottery within the purview of the statute, towit, the paying of money, directly or indirectly, for the chance of drawing the piano, is lacking, and the transaction did not constitute a violation of the statute."

The text and authorities cited in 17 R.C.L. 1222 support this view of the law; and our own decision in Society Theatre Co. v.Seattle, 118 Wash. 258, 203 P. 21, is in harmony with this view, though that decision was against the persons disposing of the chance tickets.

Our real problem then is as to whether or not any of the persons acquiring the numbered tickets, and thereby the chance of receiving some goods upon the distribution being made from the stage of the theatre, "paid or agreed to pay a valuable consideration for the chance." Manifestly, anyone who would acquire such chance by receiving a numbered ticket without paying for admission to the theatre, would not pay or agree to pay anything for the chance of receiving some goods. How then can it be said that those who paid admission to the theatre and received a numbered chance ticket at the same time, paid anything for such chance, when it is plain that they could have received such chance ticket for nothing without paying for admission to the theatre. It seems plain to me that the offering and giving of the numbered tickets to those who paid admission to the theatre was as much a pure donation or gift to them as the offering and giving to others would be a pure donation or gift to them, since the rights of both were exactly the same in so far as their respective chances of having goods distributed to them upon the drawing of the duplicate numbered tickets are concerned; and both classes had absolutely equal opportunity to so acquire the chance tickets. To my mind it is wholly immaterial that no outsider availed himself of the offer of free tickets, as the theatre patrons generally availed themselves of the same offer of free tickets. It is not a question of who acquired tickets, but did appellants cause anyone to pay a consideration for any chance such tickets evidenced.

Many decisions are cited and relied upon by counsel for the prosecution, but all of them, when critically examined, will be found dealing with situations where the persons receiving the chance actually paid value therefor, though the chance may have been a pretended gift to him in connection with the sale of goods or something of value. In all those cases, the payment made by the one receiving the chance was not only for the goods or the thing of value which he received in any event, but was also for the chance to receive something else of value, because he could not acquire the chance of receiving something else of value unless he actually purchased something. Such, I think, are all of the decisions which counsel for the prosecution have brought to the support of their contention that the persons who paid for admission to the theatre were also paying for their chance numbered tickets. That contention would be sound only if no one but those who paid admission to the theatre were entitled to receive the chance tickets. Such, I think, is the plain difference between the cases relied upon by counsel for the prosecution and this case. Counsel for the prosecution rely particularly upon our decision in Society Theatre Co. v.Seattle, 118 Wash. 258, 203 P. 21, but that case, when critically examined, will be found to be like the others relied upon by them, in that no one acquired or could acquire any chance to win any prize other than those who bought admission tickets to the theatre.

I am of the opinion that, as a matter of law, appellants have not violated the provisions of our lottery statute above quoted, and that they were entitled to instructed verdicts of acquittal as moved for in their behalf at the conclusion of the trial in the superior court. The judgments of conviction rendered against appellants should be reversed.

TOLMAN, C.J., MACKINTOSH, and ASKREN, JJ., concur with PARKER, J.