Criminal law — Lottery — Elements — General character of scheme — "Theatre" — "Bank night" — Free admission of some.
1. A lottery is any scheme whereby one, on 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.
2. To constitute a lottery there must be present the three elements, of a prize to be won, the determination of the winner by chance, and a consideration.
3. Where, on the trial of an indictment charging defendant with maintaining a lottery, it appeared that defendant, who operated motion picture theatres, offered to the public a cash prize to be awarded on a specific date to the person whose registration number corresponded to a number drawn by lot or chance upon the stage of the theatre during a show, provided the one having the winning number was present at the time of the drawing in the theatre in person or by "proxy"; and that the registration number was given free by the management but practically all of those who attended on the night of the drawing had paid an admission fee, although a small number of free proxy cards had been given away, each entitling the holder to participate in the drawing on an equal footing with the paying patrons; the trial judge properly determined, upon a consideration of all the evidence, that the "flexible participation bank night" operated by defendant constituted a lottery.
4. The primary question in such cases is not whether any individual attending a theatre on "bank night", paying for admission, or admitted free, present in person or by proxy, is acting in concert with the owner in operating a lottery, but rather whether the owner is maintaining and operating a lottery; and this is to be determined by the character and practical operation of the scheme as a whole.
Argued October 1, 1940.
PER CURIAM, October 9, 1940:
The judgment of the court below is affirmed on the opinion of President Judge READER.
Judgment affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.