The writer is of the opinion that the information is not subject to demurrer and, therefore, he concurs in the result reached by the majority opinion.
The writer thinks that the information charges the crime of promoting and setting up a lottery and that it also charges the crime of conducting, maintaining and using a nickel-in-the-slot machine. *Page 135
The writer cannot concur in holding that the information does not expressly admit that the operation and playing of the machine described therein involves a substantial amount of skill on the part of the player.
In the opinion of the writer the question is whether the "pure chance" doctrine should be applied or the "dominant chance" doctrine should prevail.
We are not called upon to hold that a Chinese lottery is not a lottery because it is sometimes operated behind barred doors. The question before us is whether a pinball machine cannot be or become a lottery because skill on the part of the player affects to a certain degree the result of the game. The circuit court decided that question adversely to the State.
The State has appealed to this court from the decision. The State insists that the information herein charges the crime of promoting and setting up a lottery for money. The defendant challenges that assertion; and bases his challenge upon the statement in the information to the effect that the award of prizes is controlled to some extent by the skill of the player; and hence, as defendant claims, because such award is not the result of pure chance the machine is not a lottery.
The trial courts of the state are at a variance upon the question. This court has been upon both sides of it.
In that state of the record, the writer takes this occasion to say that, in deference to the importance of the question, its effect upon the commonwealth, the present embarrassment to the district attorneys, the trial courts and the office of the attorney general, because the question is unsettled, this court should now and here decide it. The question is whether the information charges the crime of promoting and setting up a lottery for money. That was the question argued in the trial court, that was the question argued in the supreme *Page 136 court, and until that question is settled varying and divergent views thereon will be declared by the trial courts and the administration of justice will suffer in the esteem and confidence of the people.
The contest between the State and the defendant in the lottery case has been centered upon whether the "pure chance" doctrine should be applied or the dominent chance doctrine should prevail.
The "pure chance" doctrine is that one of the essential elements of a lottery is that the selection and award of the prize must be determined by pure chance in which man's choice or will has no part and which is undeterminable by human reason, foresight, sagacity or design until the same has been accomplished.
In his brief, defendant frankly states that this "pure chance" doctrine is enunciated by the minority of courts and known as the "minority view", but he urges that the minority view is based upon sound reasoning and logic.
People v. Elliott, 74 Mich. 264 (41 N.W. 916, 3 L.R.A. 403, 16 Am. St. Rep. 640), cited to this point is a case wherein a conviction was affirmed. It is obvious that the affirmance of a conviction in a case, wherein the award was made by pure chance, is not tantamount to a holding that in a case, wherein there was an element of skill but chance predominated, a conviction could not be affirmed.
Hall v. Cox, [1899] 1 Q.B. Div. 198 (68 L.J., 2 Barb. 167), andBrown v. Bonnycastle, [1936] 1 D.L.R. 295, also cited by defendant, are English and Canadian cases.
Lee et al. v. City of Miami et al., 121 Fla. 93 (163 So. 468, 101 A.L.R. 1115), a suit to restrain the licensing of machines, and Ex parte Pierotti, 43 Nev. 243 *Page 137 (184 P. 209), are also cited by defendant. We will discuss these two cases later herein.
Although defendant cites Public Clearing House v. Coyne,194 U.S. 497 (48 L. Ed. 1092, 24 S. Ct. 789), the writer thinks that it declares the majority view. We quote from it:
"The return to the subscribing member, which is called a realization, is not only uncertain in its amount, but depends largely upon the number of new members each subscriber is able to secure, as well as the number of members which his co-operators are able to secure. The return to members who have been able to secure a large number of other members, and to pay their own monthly dues, may be very large in comparison with the amount paid in, but the amount of such return depends so largely, and, indeed almost wholly, upon conditions which the member is unable to control, that we think it fulfills all the conditions of a distribution of money by chance."
Douglas v. Kentucky, 168 U.S. 488 (18 S. Ct. 199,42 L. Ed. 553), holds that legislative enactments granting the privilege of operating lotteries are not contracts and may be abrogated by subsequent legislative actions.
Except the citations to Oregon constitutional, statutory and judicial authority, the foregoing cases comprise all those cited by defendant to the point that the minority view is based upon sound reasoning and logic.
To the writer, it is plain that this court has announced both the minority and majority rules. The following Oregon cases are determinative of that fact: Quatsoe v. Eggleston, 42 Or. 315 (71 P. 66); National Sales Co. v. Manciet, 83 Or. 34 (162 P. 1055, L.R.A. 1917D, 485); National Thrift Assn. v. Crews,116 Or. 352 (241 P. 72, 41 A.L.R. 1481); Johnson v. McDonald,132 Or. 622 (287 P. 220); Multnomah County Fair Assn. v. Langley,140 Or. 172 (13 P.2d 354); *Page 138 and State v. Schwemler, 154 Or. 533 (60 P.2d 398. No good purpose would be served by analyzing and comparing these cases. Suffice it to say, that the Quatsoe-Eggleston case, supra, is understood by text writers as declaring the minority rule.
There is no controlling reason why this court should be out of harmony with the consensus of judicial opinion as reflected by the majority of the courts of the United States. By it we are told that even though the element of skill enters into the determination of who shall win, if the element of chance is the predominating, determinative factor then the award is one of chance, and, where the other elements comprising a lottery are present, the conduct and operation thereof is within the inhibition against lotteries.
The English and Canadian courts adhere to the minority view:Scott v. Director of Public Prosecutions, 6 Brit. Rul. Cas. 765, [1914] 2 K.B. 868, 83 L.J.K.B. 6 N.S. 1025, 111 L.T.N.S. 59, 78 J.P. 267, 30 Times L.R. 396; Hall v. Cox, supra; Stoddartv. Sager, [1895] 2 Q.B. 474; Caminada v. Hulton, 17 Cox Cr. L.C. 307; Barclay v. Pearson, [1893] 2 L.R. Ch. Div. 154; Rexv. Ying Foy (B.C. 11 West L.R. 246; Queen v. Parker, Vol. IX Man. 203; Dunham v. St. Croix Soap Mfg. Co., 34 N.B. Rep. 243;Regina v. Jamieson, 7 Ont. 149; Regina v. Dodds, 4 Ont. 390; Archbold Crim. Plead. (1900) p. 1,441; Brown v. Bonnycastle, supra. For this reason we do not discuss the English and Canadian cases cited by defendant.
The majority view is reflected in the following cases: Statev. Barbee (La.) 175 So. 50; Public Clearing House v. Coyne, supra; United States v. McKenna, 149 Fed. 252; Waite v. PressPub. Assn., 155 Fed. 58 (85 C.C.A. 576, 12 Ann. Cas. 319, 11 L.R.A. (N.S.) 609); People v. Lavin, 179 N.Y. 164 (71 N.E. 753, *Page 139
66 L.R.A. 601, 1 Ann. Cas. 165); Stevens v. The CincinnatiTimes-Star Co. et al. (3 cases) 72 Ohio St. 112 (73 N.E. 1058, 106 Am. St. Rep. 586); Lewis v. State, 55 Ga. App. 159 (189 S.E. 566, 28 Cin. L. Bul. 235); Main v. Mackey, 21 Pa. Dist. 1142 (39 Pa. Co. 589); State v. Vasquez, 49 Fla. 126 (38 So. 830); Com. v. Plissner (Mass.) 4 N.E.2d 241; People v.Babdaty, 139 Cal. App. 791 (30 P.2d 634, 635); State ex rel.Prout v. Nebraska Home Co., 66 Nev. 349 (92 N.W. 763, 103 Am. St. Rep. 706, 60 L.R.A. 448, 1 Ann Cas. 88; El Debate Inc. v.Topacio, 44 Philippine Rep. 278.
"From an examination of the later cases, both federal and state, it appears to have become the established American doctrine that, in order to constitute a lottery within the meaning of the various statutes, it is not necessary for the distribution of prizes to be purely by chance, but only for such distribution to be by chance as the dominating element, even though affected to some extent by the exercise of skill or judgment." Excerpt from section 12, Vol. 17, R.C.L., Subject: Lotteries, p. 1225.
It was suggested by defendant's attorney upon oral argument that a lottery is neither a game nor a sport, but merely a scheme and, hence, that the maintenance of a pinball machine cannot constitute the conduct and setting up of a lottery. This argument overlooks the fact that the maintenance and operation of the machine constitutes the means of carrying out the scheme which includes the payment of a nickel for a chance to win a larger sum as a prize by operating the machine which is the method of determining who may and who may not win a prize.
"The term `lottery' has a double meaning. It includes not only a scheme for the distribution of prizes by chance, but the distribution itself * * * * *." Vol. 2. Wharton's Criminal Law (13th Ed.), Sec. 1777. *Page 140
Defendant's brief frankly admits, however, that this court is committed to the rule that there may be a lottery without a drawing and without tickets.
The following are some of the cases in each of which the maintenance of some machine has been held to constitute the crime of conducting a lottery: State v. Barbee, supra; Johnston v.State, 137 Ala. 101 (34 So. 1018); Reeves v. State, 105 Ala. 120 (17 So. 104); Ex parte Gray, 23 Ariz. 461 (204 P. 1029);City of New Orleans v. Collins, 52 La. Ann. Rep. 973 (27 So. 532); State v. Lowe, 178 N.C. 770 (101 S.E. 385, 387); Statev. Vasquez, supra; Commonwealth v. Ward, 281 Mass. 119 (183 N.E. 271); Loiseau v. State, 114 Ala. 34 (22 So. 138, 62 Am. St. Rep. 84); Prendergast v. State, 41 Tex. Cr. App. 358 (57 S.W. 850); Com. v. Plissner, supra; Queen v. State, 93 Tex. Cr. App. 173 (246 S.W. 384).
Defendant also urges that to adopt the majority rule upon the element of chance, as distinguished from "pure chance" being a requisite, is to classify all gambling as lotteries; and it is argued that this course is contrary to the attitude of the constitution makers, who, being well-informed citizens, knew that a distinction existed between lotteries and other forms of gambling and that this distinction was and is reflected in the various statutes prohibiting certain gambling games independently of the statute condemning lotteries.
It must be conceded that lotteries constitute a form of gambling. Whatever mechanical device is used by which the prize is drawn or awarded is a gambling device.
It is argued that the territorial statutes in force distinguished between lotteries and other gambling by applying the test of chance or pure chance in the method of award. If the award were made by chance, the device *Page 141 or scheme was the usual or common form of gambling; but if made by "pure chance" then the scheme or device constituted lottery.
We find no such distinction in the territorial statutes. It is true that lotteries were prohibited by a statute specifically naming them: Chapter VIII, Laws of Oregon, 1853, p. 206; Chapter VIII, Statutes of Oregon, 1855, p. 229. It is likewise true that by the terms of the general anti-gambling statute (Chapter X, ibid, pp. 208 and 231, respectively):
"All E.O. or rolette tables, faro or faro banks, and all gaming with cards, gaming tables or gambling devices whatever" were "prohibited from being set up or used for gaming or gambling purposes" in the territory. (Italics supplied.)
It is apparent that, then as now, lotteries were included in the all-embracive terms of the general anti-gambling statutes. It is equally apparent that the chance or pure chance doctrine could not then, as it cannot now, correctly distinguish a lottery from an ordinary form of gambling. Roulette wheels, dice games, and the first nickel-in-the-slot machines in general use are all devices whereby the award is made without the influence of skill or foresight and yet that alone does not transform these gambling agencies into lotteries, and, certainly, neither the territorial nor the present statutes reflect such a phenomenon.
The supreme court of the United States has indicated a distinction between lotteries and other forms of gambling. In the Nevada case of Ex parte Pierotti, supra, which supports the minority view discussed herein and is cited by defendant, the distinction thus indicated by the highest federal court is adopted. The Nevada court in the Pierotti case, supra, does not say that the distinction between lotteries and other forms *Page 142 of gambling is to be found in the holding that pure chance must be shown to have controlled the award in lotteries, while in other forms of gambling it need only to be shown that chance dominated the award. On the contrary, the Nevada court very clearly states the distinction which attends irrespective of whether the "pure chance" or the chance doctrine is applied.
We quote from the Nevada case:
"It is true that in common parlance, in a dictionary sense and the statutory definition, the word `lottery' may be a game. But the Legislature of this state, since the date of its organization as a state, has plainly drawn a distinction between lotteries and unlawful gaming. This distinction is universally recognized as being within the power of such bodies to make in the absence of any constitutional inhibition. Both are offenses against the law, and both are offenses against public policy. Temple v.Commonwealth, 75 Va., 901. The reason for the distinction is not difficult to find. A lottery is prohibited by the Constitution as a public nuisance — a crime against the good order and the economy of the state. Section 6561, Rev. Laws. It is a crime that goes to the destruction of the morals of the people and paralyzes the industrial energy of society. From the language employed in the Constitution it is evident that this was the understanding of its framers. Ex parte Blanchard, 9 Nev. 104. `It is this extensive reach, and not merely its speculative purposes which makes lottery gambling so dangerous' as to be a proper subject for constitutional prohibition. The reason for the distinction is forcibly expressed by the highest court of the land in this language: `The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings *Page 143 of the poor; it plunders the ignorant and simple. Phalen v.Commonwealth', 8 How. 163, 12 L. Ed. 1030.
"It is true that lotteries and unlawful gaming partake of the same mischief. They belong to the same family. Chance is the material element in both. The Legislature is prohibited from legislating upon one and permitted by virtue of its inherent powers to legislate upon the other as the occasion arises. This for the reason of the wide distinction or contrast between the vice of lotteries, which infests the whole community, and the mischief or nuisance of gaming, which is generally confined to a few persons and places." Ex parte Pierotti, supra.
We also quote the excerpt from Ex parte Blanchard to which reference is made in the foregoing quotation from Ex partePierotti:
"By statute 10 and 11, W. III, c. 17, all lotteries are declared to be public nuisances. 4 Bl. Com. 168. This statute remained in force in England at the time of the declaration of American Independence, and being applicable to our situation, constitutes a part of the common law of the United States. From the language employed in the constitution, it is evident that this was the understanding of its framers." Ex parte Blanchard,9 Nev. 101, 105.
It is not necessary to advert to the holdings in sister jurisdictions in order to find a recognition of this distinction between lotteries and other forms of gambling. It is announced inEx parte Kameta, 36 Or. 251 (60 P. 394, 78 Am. St. Rep. 775), and plainly repeated by Mr. Justice RAND in State v. Schwemler, supra, which is the latest expression of this court upon the subject.
Bearing in mind that Phalen v. Commonwealth, supra, was decided in December, 1849, and that the Oregon constitutional convention was held in 1857, it is obvious that the members of the convention were *Page 144 familiar with the distinction there made between lotteries and other forms of gambling.
Earlier in this opinion, we adverted to the case of Lee et al.v. City of Miami et al., supra, designating the nature of the case and saying that later herein we would further discuss it. The reason for this further discussion is that we are impressed with the emphasis given by this Florida case, cited by defendant to the "widespread pestilence" test of what constitutes a lottery.
This Florida case was brought to restrain the licensing of certain types of coin-operated devices under the provisions of chapter 17257, Acts of 1935, Laws of Florida, subdivision 2 of section 2 of which refers specifically to "Coin operated skill machines (commonly referred to as Pin-games, Marble Tables, and similar devices of this type which may have a skill feature.)"
We quote from the opinion:
"What section 23 of Article III [Const. of Fla.] actually did was not to suppress such legalized lotteries as are referred to in the fore part of this opinion, the primary test of which was whether or not the vice of it infected the whole community or country, rather than individual units of it. Any gambling device reaching such proportions would amount to a violation of the Constitution but it is not alleged or shown that the devices legalized by Chapter 17257 [Fla. Stat.] comes in this class.
"Chapter 17257 on its face does not clearly offend against organic law nor do the coin operating vending machines described in Section 2, the use of which is restrained, constitute lotteries per se. It may be that some of them or possibly all ofthem in their operation will become such; but we leave thatquestion to be determined when a specific case arises." (Italics supplied.) Lee et al. v. City of Miami, et al. supra. *Page 145
In the first edition of his "Statutory Crimes", Mr. Bishop made the distinction between lotteries and other sorts of gaming thus, —
"* * * it is now seen that they" (lotteries) "are an evil both by the wholesale and retail, while the other sorts of gaming are merely evils of the retail." Bishop on Statutory Crimes, § 951.
It is true that in subsequent editions the above quoted phrase was superseded by —
"* * * their evils were immense; both in the woes inflicted on the weak-minded and credulous, who were induced to buy chances in them, to be followed by bitter disappointment; and in their baneful effects on those termed `lucky' who drew the prizes." Bishop on Statutory Crimes, 2nd and 3rd Editions, § 951.
In the writer's view, "wholesale and retail" evil and immensity of evil are synonomous with "widespread pestilence."
Mr. Wharton says:
"* * * When, however, the community at large is entitled to come in, a new and very serious objection springs up. Independently of the opportunity for fraud by the managers of such enterprises, their publication imparts an excited spirit of gambling to the public generally. On the one side, often ensue gross cases of deception as to the scheme itself; on the other, the sacrifice of savings by the ignorant and credulous, and excitement, destruction of regular industry, often inducing insanity. It is to suppress that species of lottery, we should remember, that the lottery statutes are aimed. The test, therefore, as to any scheme for the distribution of property by chance, is, Is it private or public." 2 Wharton's Criminal Law, 11th Ed., p. 1945, Sec. 1776.
These recognized authorities on criminal law express the view that the reason for the law prohibiting *Page 146 lotteries is that they are, or are capable of becoming, widespread in their evil effect. To the writer it is axiomatic that if the game, device or scheme is not within the reason of the rule, it is not within the rule itself.
As to the widespread pestilence of pin board operations, we need only heed the argument made by defendant's attorney in order to conclude that the operation of these gambling devices has become widespread and pestilential. In his argument, defendant's attorney advised the court that these pinball games were in operation in practically every city and county in the state. As citizens, we know that until recently their operation was general and that the patrons and players were very numerous and were comprised of all classes.
The only case exactly in point coming to our attention isState v. Barbee, supra. It is argued that, because the constitution of Louisiana not only prohibits lotteries but also enjoins upon its legislature the duty to pass laws suppressing gambling, this case is not in point. That case, nevertheless, expressly holds that a pinball machine is a lottery and the writer is in accord with that holding, subject to proof of its character as producing or being capable of producing or imparting "an excited spirit of gambling in the public generally."
The writer concurs in holding that the demurrer to the information herein should have been overruled.
Mr. Justice ROSSMAN concurs in the foregoing specially concurring opinion.