State v. Schwemler , 154 Or. 533 ( 1936 )

I concur in the foregoing opinion except in the two parts to which I shall now refer. The majority intimate that the awarding of the prize must be dependent upon pure chance; otherwise the scheme is not a lottery. They declare that if skill plays any part, however small, the scheme is not a lottery. I can not concur in that view of the law.

From 38 C.J., Lotteries, § 5, p. 291, the following is taken:

"The rule generally followed in the United States is that the word `lottery' includes those schemes wherein chance is the dominant factor in determining the result, although it may be affected to some degree by the exercise of skill or judgment; * * *"

From 17 R.C.L., Lotteries, § 10, p. 1223, we quote:

"In the United States, however, by what appears to be the weight of authority at the present day, it is not necessary that this element of chance should be pure chance, but it may be accompanied by an element of calculation or even of certainty."

In support of the statement just made, the editor cites the two decisions which will now be reviewed. In Waite v. PressPublishing Association, 155 Fed. 58 (85 C.C.A. 576, 12 Ann. Cas. 319 (and note), 11 L.R.A. (N.S.) 609 (and note), the court held that a scheme whereby the defendant obtained subscriptions for periodicals by promising to the subscriber who submitted the most accurate estimate of the total vote to be cast for President November 8, 1904, a prize of $10,000, and to the individual making the second closest estimate, $5,000, was a lottery. It so held notwithstanding it pointed out:

"One skilled in national politics and conversant with existing conditions might make a closer estimate than one wholly ignorant."

In Stevens v. Cincinnati Times-Star Co., 72 Ohio St. 112 (73 N.E. 1058, 106 Am. St. Rep. 586) (and note) a scheme similar to the one just mentioned was held to be a lottery. The Ohio court nevertheless pointed out:

"It is true that one acquainted with the results of the elections of the state in previous years and educated in politics would have some advantage over one ignorant in those respects, yet it must be apparent, even to a casual observer, that the result would depend upon so many uncertain and unascertainable causes that the estimate of the most learned would be, after all, nothing more than a random and undecisive judgment. In the sense above indicated there is an element of skill, possibly certainty, involved; but it is clear that the controlling predominating element is mere chance. It was a chance as to what the total vote would be: it was equally a chance as to what the guesses of the other guessers would be."

For additional decisions to the same effect see the annotations above cited.

In People v. Rehm (Cal. Super.), 57 P.2d 238, the court had under review a scheme wherein the participants paid $1 each to the operator, and were given a sheet containing six cartoons and 25 suggested titles. After a board of judges had determined which participants had selected the most appropriate titles, prizes were then awarded to the winning participants. In holding that the scheme was a lottery, the court nevertheless declared:

"In the contest before us we find that while the outcome could be foreseen in a measure by the exercise of thought, although `fancy' would be a more accurate word, nevertheless thought played so small a part that the controlling force remained chance. So understood, the scheme appeared a lottery, in which one stood a chance of winning $25,000 by the expenditure of $1.00, a half hour's time, and a 3-cent stamp."

From Brooklyn Daily Eagle v. Voorhies, 181 Fed. 579, we quote:

"It has been held in numerous cases, such as Waite v. Press Publishing Association, 155 Fed. 58, 85 C.C.A. 576, 11 L.R.A. (N.S.) 609, Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171, U.S. v. Wallis (D.C.) 58 Fed. 942, and Horner v. U.S. 147 U.S. 449,13 Sup. Ct. 409, 37 L. Ed. 237, that the three necessary elements of a `lottery' are the furnishing of a consideration, the offering of a prize, and the distribution of the prize by chance rather than entirety upon a basis of merit."

The above quotation taken from Ruling Case Law also citesHorner v. United States, 147 U.S. 449 (13 S. Ct. 409,37 L. Ed. 237), and Public Clearing House v. Coyne, 194 U.S. 497 (24 S. Ct. 789, 48 L. Ed. 1092). In the case last cited each participant could not only increase the amount of his gains but also enhance the likelihood of his eventual success by gaining for the scheme additional participants. Nevertheless the court held that the scheme was a lottery.

In Multnomah County Fair Association v. Langley, 140 Or. 172 (13 P.2d 354), our decision pointed out that chance as distinguished from skill must be the predominant factor in a lottery, and cited authorities in support of the statement. Since the decision of the majority holds that in the scheme operated by the defendant skill plays no part whatever and the prize is awarded purely by chance, the statement now under review is unnecessary; that is, no intimation is needed that a scheme is not a lottery unless the award is made purely by chance. In my opinion, a scheme is a lottery, even though skill plays a part, provided chance is the predominant factor. InPeople v. Lavin, 179 N.Y. 164 (71 N.E. 753, 66 L.R.A. 601, 1 Ann. Cas. 165), the court pointed out:

"The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game."

The record indicates that in dart games provision is made for a small element of skill. It is questionable, however, whether any dart game is a bona fide contest of skill. Concerning the bona fides of the contest, see Brooklyn Daily Eagle v. Voorhies, supra. The provision for skill, as in many other like schemes, appears to be a mere subterfuge to give an appearance of lawfulness and to conceal its real nature. The record undoubtedly shows that the predominating factor in the award of prizes in dart games is chance. The facts are all before us. There is no controversy concerning the nature of the game. Such being true, whether or not the scheme is a lottery is purely a question of law. That being so, a conclusion is justified that the scheme is a lottery.

I dissent from the portions of the decision of the majority at variance with the above. In all other parts I agree.

KELLY, J., concurs.