State v. Sedgwick

81 A. 472, 25 Del. 453, 2 Boyce 453, 1911 Del. LEXIS 65

• Court: New York Court of General Session of the Peace
• Decided: September 21, 1911
• Status: Published

Opinion

Woolley, J.

delivering the opinion of the court:

We assume, for the present motion, that the law under which this indictment was found is that which appears on page 396 of the Revised Code, being Chapter 33, Volume 12, of the Laws of Delaware, and which in part reads as follows:

“ If any person shall * * * sell or dispose of, * * * any lottery policy, certificate, or anything by which such person or any other person promises or guarantees that any particular number, character, ticket, or certificate, shall in the event, or on the happening of any contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property, or evidence of debt, * * * every person sb offending shall, upon conviction,” be subject to a certain penalty.

Counsel for the prisoner have moved the court that the jury be instructed to return a verdict of not guilty, upon two grounds; which, as we understand them, are as follows:

[1] First, that the tickets sold by the prisoner, do not in themselves show a promise or guarantee by him that upon the happening of an event the holder shall be entitled to money.

[2] Lottery is a scheme for the distribution of money or prizes by chance. That scheme is not limited to the sale of tickets nor to the terms or promises printed or written upon them. Being a scheme, involving more than appears upon the tickets, its character and extent may be shown by any proper testimony.

Entertaining that view, we have ruled in certain evidence, and for the same reason we decline to grant the motion upon the first ground.

[3] The second ground of the motion is that the “contingency” which determines the winning of a prize in this particular scheme is the aggregate number of runs made by a certain number of baseball clubs, which being the result of skill and not of chance, is not “a contingency in the nature of a lottery.”

The “happening of a contingency in the nature of a lottery,” as contemplated by the statute and applied to the particular facts of this case, is not the number of the runs made by different baseball clubs, which uncertainty may or may not be a matter of chance within the meaning of the law, but the contingency here, into which enters the element of chance and which partakes of the nature of a lottery, is the double hazard of the selection of a combination of numbers which are designated by a drawing to be representative of certain clubs, the winnings upon which are determined by baseball scores. The prize is given not to him who may forecast the results of the games, either in victories or in runs but to him who selects and. pays for a combination of numbers each representing a club not selected by but designated for him, the total runs of which approach nearest the highest total of runs made in a given time by a like number of clubs.

There is but one highest total of runs made by six clubs regardless of the number of runs made and that highest number of runs is the factor that determines who wins on the combinations of numbers selected by the members 'of the pool. As a method of determining the winner of all who participated in the game, it has no advantage over nor is it essentially different from the ordinary method of having a little girl or a man of position draw the decisive or determining number from a hat. We are of opinion that the scheme disclosed by the evidence constitutes a lottery within the meaning of the law and therefore decline to grant the motion that the jury be instructed to acquit the prisoner.

The defendant thereupon entered a plea of guilty and was paroled upon his own recognizance.