The information does not refer specifically to any criminal statute, although both the appellant and the respondent in their briefs assume that an attempt is made to charge the defendant with the crime of promoting and setting up *Page 147 a lottery for money, in violation of § 14-801, Oregon Code 1930. The discussion in the briefs of the parties does not seem to have any particular reference to the language of that section of the code, but the argument is devoted principally to what in general constitutes a lottery.
Section 4 of article XV of the constitution of Oregon, which has not been altered since the time of its adoption, is as follows:
"Lotteries and the sale of lottery tickets, for any purpose whatever, are prohibited, and the legislative assembly shall prevent the same by penal laws."
Following the adoption of the constitution the legislature in 1864 enacted the code of criminal procedure, which code included the provisions as to lotteries and gambling to which attention is now directed. Section 644 of that code, which has remained unamended since its enactment and is still unchanged except as to punctuation in succeeding compilations, is now codified as § 14-801, supra, reading thus:
"If any person shall promote or set up any lottery for money or other valuable thing, or shall dispose of any property or value, real or personal, by way or means of lottery, or shall aid or be in any way concerned in setting up, managing, or drawing such lottery, or shall, in any house, shop, boat, shed, or building owned or occupied by him or under his control, knowingly permit, or suffer the setting up, management or drawing of any such lottery, or the sale of any lottery tickets, share of a ticket, or any writing, token or other device, purporting or intended to entitle the holder or bearer thereof, or any other person, to any prize, or interest or share thereof, to be drawn in any lottery, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary, not less than six months, nor more than one year, or by imprisonment in the county jail not less than three months, nor more than *Page 148 one year, or by a fine not less than one hundred, nor more than one thousand dollars."
Section 645 of the 1864 code of criminal procedure has likewise remained unaltered since its adoption and is now § 14-802, Oregon Code 1930. It is thus worded:
"If any person shall sell, either for himself or another, or shall offer for sale, or shall have in his possession with intent to sell or offer for sale, or to exchange or negotiate, a ticket or share of a ticket in any such lottery, or any writing, token, or other device as is mentioned in section 644 [14-801], such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than fifty dollars, or more than five hundred dollars."
The next succeeding section of the 1864 criminal code, 646, has also remained on the statute books without change since its adoption. It is now codified as § 14-803, Oregon Code 1930, and prohibits the advertising for sale of lottery tickets or any other writing, token or other device mentioned in § 14-801,supra.
The foregoing provisions were included in chapter XLIX of the 1864 code of criminal procedure under the general heading, "Crimes against public policy". The same code in chapter L, the general heading of which is "Of Gaming", includes § 666, providing as follows:
"All gambling devices of whatever name or nature, adapted, devised or designed for the purpose of playing any game of chance for money, property or other valuable thing, or any representative thereof, are prohibited from being set up, kept, used, exhibited, opened, dealt, played or practiced in this state."
Section 667 of the 1864 criminal code provides as follows:
"If any person shall allow, suffer or permit, any gambling device prohibited by section 666 to be set up, *Page 149 kept, used or exhibited for the purpose of gaming, in any house, building, shed, booth, boat, shelter, lot or premises to him belonging or by him occupied or rented, or of which he has at the time the possession or control, such person, upon conviction thereof, shall be punished by imprisonment in the county jail, not less than three months, nor more than one year, or by fine not less than three hundred dollars, nor more than one thousand dollars."
The code of criminal procedure "was prepared and reported to the legislative assembly, that met September 12, 1864, by M.P. Deady. It was passed at the same session" and took effect from and after the first day of May, 1865: Code of Criminal Procedure 1864, page 441, note. Judge Deady was the president of the constitutional convention and it is significant that he, in drafting this code, and the legislature, in enacting it, distinguished between lotteries and certain gambling devices involving an element of chance.
The code of 1853, which has often been referred to as the first code of Oregon, was prepared by three commissioners elected by the territorial legislature of 1852-1853. The commissioners were James K. Kelly of Clackamas county, Reuben P. Boise of Polk county and Daniel R. Bigelow of Thurston county. Both Mr. Boise and Mr. Kelly served as members of the legislative assembly which adopted this code, Mr. Boise as a member of the house of representatives and Mr. Kelly as a member of the upper branch of the legislature. In the interim between the appointment of the commissioners and the meeting of the territorial legislature, an act had been passed by Congress organizing the territory of Washington, and that necessarily prevented Mr. Bigelow, of Thurston county in that territory, from becoming a member of the Oregon legislative assembly: Oregon Historical Society, Vol. IV, page 184. Both *Page 150 Mr. Kelly and Mr. Boise were also members of the constitutional convention.
In chapter VIII of the 1853 code, under "Offenses against public policy", lotteries and the setting up or promoting of lotteries are defined in substantially the language found in our present code. Chapter X, under the title of "Gaming", provides in part as follows:
"Section 1. All E.O. or rolette tables, faro or faro banks, and all gaming with cards, gaming tables or gambling devices whatever, are hereby prohibited from being set up or used for gaming or gambling purposes in this territory."
Section 2 of the same chapter provides:
"Every person who shall deal cards at the game called faro, or forty-eight, whether the same shall be dealt with fifty-two, or any other number of cards, and every person who shall keep to be used in gaming, any gambling device whatever, designed to be used in gaming, shall forfeit the same on conviction, and be punished by fine not more than one hundred nor less than fifty dollars."
Section 7 of article XVIII of the constitution of this state provides that "all laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed." By virtue of this provision of our organic law, the sections in the 1853 code relating to lotteries and gaming were continued in force until the criminal code of 1864 became operative. The legislature in 1864 re-enacted in substance the territorial laws as to lotteries, but in re-enacting the territorial law against gaming it enlarged that law and included in general terms "all gambling devices of whatever name or nature adapted or designed for the purpose of playing any game of chance for money". *Page 151
In the footnote to § 644 of the 1864 criminal code printed in 1865 and the footnote to the same section in General Laws of Oregon 1845-1864, compiled and annotated by Matthew P. Deady and printed in 1866, we find reference to three decisions. The footnotes were undoubtedly intended to explain the meaning and application of the language used in that section of the code. The first case therein mentioned is Governors of the Alms House v.American Art Union, 3 Selden (7 N.Y.) 228, which was an action brought by the plaintiffs as overseers of the poor of the city of New York to recover from the defendants a penalty of $300, which was three times the value of a picture offered by the defendants as a prize in a lottery. After referring to a number of definitions of the word "lottery" the court there said:
"The scheme in question has all the attributes and elements of a lottery. It is a distribution by lot of a small number of prizes among a great number of persons. The prizes and blanks are drawn in the manner in which prizes are drawn in other lotteries. The certificate of membership is a ticket which entitled the holder to a chance for a prize of much greater value than the price of the ticket."
Bell v. State, 5 Sneed (37 Tenn.) 507, is the next case cited in the two footnotes. In that instance the defendant was convicted of the crime of gaming. In the opinion therein it is said:
"Gaming is an agreement between two or more, to risk money on acontest or chance of any kind, where one must be loser and the other gainer. Some games depend altogether upon skill, others upon chance, and others are of a mixed nature. Billiards is an example of the first, lotteries of the second, and backgammon of the last. 2 Bouv. Law Dic. 553. A lottery is a game of hazard, in which small sums are ventured for the chance of obtaining greater." *Page 152
The court further stated that the scheme employed was "a rare and novel device for winning and losing, and . . . ingeniously contrived to evade the laws against gaming and lotteries". It was held that the defendant was guilty of gaming, but it does not appear whether or not gaming included lotteries.
The third case mentioned in the footnotes is Den ex dem.Wooden v. Shotwell, 4 Zab. (24 N.J.L.) 789, which involved a drawing of lots to determine which tracts of land should be acquired by various purchasers of the land who participated in the scheme. In the opinion the court asked, among others, the following question: "Was it not the hope of obtaining, through the mere agency of chance, a valuable house and lot, or a lot much exceeding in value the sum of money promised to be paid?" The opinion thus continued:
"If the plan was thus originated and executed, it was a contrivance for the distribution of prizes by chance; a reliance upon the result of hazard; a decision of the values of the adventurers' investments by the favors of fortune. * * * The whole contrivance was a lottery transaction, and is directly in the face of the provisions of a statute of our state."
Not long after the enactment of the Oregon code of criminal procedure, this court, in State v. Mann, 2 Or. 238, ruled that § 666 of that code, hereinabove set out, on which the indictment therein was based, was unconstitutional, on the ground that the statute was uncertain and did not enumerate or define the gambling devices which it undertook to prohibit. In that connection the court stated:
"A crime or public offense is some act forbidden by law; and it is a well-settled rule of law that no one can be punished for doing an act, unless it clearly appears that the act sought to be punished comes clearly within both the spirit and the letter of the law prohibiting *Page 153 it. The act constituting the offense should be clearly and specifically described in the statute, and with sufficient certainty, at least to enable the court to determine, from the words used in the statute, whether the act charged in the indictment comes within the prohibition of the law. Do the provisions of the statute in question do this? Can the court ascertain from all the words used in it, without resorting to evidence, what a gambling device is? We think not, because the term has no settled and definite meaning. It is nowhere defined in the code, nor has it any common-law definition. For these reasons, we think, section 666 of the code of criminal procedure has failed to give a sufficient description of gambling devices to enable the court to determine, with certainty, what was intended to be prohibited by the legislature, and is, therefore, void."
After the court had declared § 666 of the 1864 criminal code unconstitutional, the legislature in 1868 passed an act to prevent and punish gambling (Laws 1868, page 15), of which the general features are the same as those of the act passed in 1876 (Laws 1876, page 39), which latter statute still remains in effect, unamended. Section 1 of the act is now codified as § 14-739, Oregon Code 1930. The 1868 enactment is found in chapter IX of the Deady Lane General Laws of Oregon, 1843-1872. By express language it purports to repeal § 666 of the 1864 criminal code. The reason, apparently, for re-enacting in 1876 the statute which had previously been passed is contained in the footnote in the Deady Lane code, indicating that there was some question as to whether the 1868 act had ever become effective, "because the assembly of 1868 never formally adjourned but on October 28 took a recess until March 4, 1869, and did not meet afterwards." Section 1 of the act passed in 1876 (now § 14-739, supra) is as follows:
"Each and every person who shall play, carry on, open or cause to be opened, or who shall conduct either *Page 154 as owner, proprietor, or employee, whether for hire or not, any game of faro, monte, roulette, rouge-et-noir, lanquenet, vingt-un (or twenty-one), poker, draw poker, brag, bluff, thaw, or any banking or any other game played with cards, dice, or any other device, whether the same be played for money, checks, credits, or any other representative of value, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than $500, and shall be imprisoned in the county jail until such fine and costs are paid; provided, that such person so convicted shall be imprisoned one day for every $2 of such fine and costs; and provided further, that such imprisonment shall not exceed one year."
This act contains thirteen sections, all of which, except the section repealing an earlier act and the one declaring an emergency, remain unaltered and in full force. By way of added penalty the act also provides that all persons losing money or anything of value "at or on any of said games" may recover from the dealer or player winning the same, twice the amount of money or double the value of the thing lost. It is made the special duty of the sheriff, district attorney, constable and police officers to inform against and diligently prosecute all persons "whom they shall have reasonable cause to believe guilty of a violation of the provisions of this act." The act expressly repeals the 1868 statute.
After the passage of the act of 1868 and before the enactment of the 1876 law, during its January term of 1871, the circuit court of Multnomah county in Fleming v. Bills, reported in3 Or. 286, in a habeas corpus proceeding, discussed at some length the question of what constitutes a lottery. There, the statement of facts shows, the defendant was charged with violation of the statute prohibiting lotteries. His offense was described as "conducting a scheme or game operated by means *Page 155 of dice and a box containing prizes. The box was divided into compartments; these compartments were numbered from eight to forty-eight inclusive. Some of these compartments contained prizes; others were empty or blank. The game was played by means of eight dice thrown by the person who chose to pay the specified sum for the chance of winning a prize. If such person threw a number corresponding with the number of a compartment containing a prize, he became entitled to a prize contained in that compartment, otherwise he received nothing." In discussing whether or not the device operated by the defendant was a lottery, the court stated:
"The constitution of the state prohibited lotteries and the sale of lottery tickets, and the statute makes a violation of this clause of the constitution punishable as a felony; other games of chance forbidden by statute are declared misdemeanors."
The opinion then lists various definitions of the word "lottery" as given by courts, text writers and dictionaries, and refers to and briefly describes the Genoese or numerical and the Dutch or class lotteries. Two of the definitions are taken fromBell v. State, supra, and Governors of the Alms House v.American Art Union, supra, and the following is from Bouvier's Law Dictionary and Webster's Dictionary: "A scheme for the distribution of prizes by chance." From Bishop on Criminal Law this definition is taken: "A game wherein a person paying money becomes entitled to money, or some other thing of value, on contingencies, to be determined by lot cast by the managers of the game." The decision was that the device employed by the defendant constituted a lottery, inasmuch as "the result," the court found, "of a fair throw of the dice is wholly a matter of chance." *Page 156
In January, 1868, Judge Deady, in United States v. Olney, 27 Fed. Cas. 233, case No. 15,918, which involved the federal law taxing lotteries, decided that the scheme there in question was a lottery. The opinion states that that case "is in almost every respect a counterpart of the celebrated case of the American Art Union, decided in New York in 1852," which precedent we have hereinabove mentioned. Holding that the scheme there operated by the defendant for the distribution of town lots was a lottery, Judge Deady variously defined "lottery" as follows:
"The word `lottery' is defined and used as follows by lexicographers and writers: `A distribution of prizes and blanks by chance; a game of hazard, in which small sums are ventured for the chance of obtaining a larger value either in money or other articles.' Worcest. Dict. `A disposition of prizes by lot or chance.' Webst. Dict. `A scheme for the distribution of prizes by chance.' Bouv. Dict. `A kind of game of hazard, wherein several lots of merchandise are deposited in prizes for the benefit of the fortunate.' Rees. Cyclopaedia. `A sort of gaming contract, by which, for a valuable consideration, one may by favor of the lot obtain a prize of a value superior to the amount or value of that which he risks.' Am. Cyclopaedia. `That the chance of gain is naturally over-valued, we may learn from the universal success of lotteries.' Smith, Wheat. Nat. bk. 1, c. 10.
"All these authorities agree that where there is a distribution of prizes — something valuable — by chance or lot, this constitutes a lottery. But the definitions from Worcester and the American Cyclopaedia are the most complete. From each of these it expressly appears that a valuable consideration must be given for the chance to draw the prize."
In 1871 this court, in the case of State v. Dougherty, 4 Or. 200, was called upon to determine the sufficiency of an indictment charging the defendants with setting up and managing a lottery for money. The indictment *Page 157 itself, after naming the defendants, stated that they were accused by the grand jury of Multnomah county, Oregon, "by this indictment, of the crime of aiding and being concerned in setting up and managing a lottery for money, committed as follows". The indictment then stated that the defendants, naming them, on a certain day, in Multnomah county, Oregon, "did unlawfully and feloniously aid and were concerned in setting up a lottery for money, contrary to the statute."
After directing attention to section 11 of article I of the constitution of Oregon, to the effect that a defendant has a right "to demand the nature and cause of the accusation against him, and to have a copy thereof", and citing § 69 of the criminal code (now § 13-703, Oregon Code 1930), to the effect that in a criminal action the indictment must contain "a statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended", this court held that the indictment was insufficient to meet those requirements of the constitution and the criminal code. The opinion pointed out the necessity of complying with the statute, and continued:
"Under the provisions of the section of our statute before referred to, prohibiting lotteries, there is special reason for particularity and certainty in the indictments so far as `the nature and cause of the accusation' are concerned, for the reason that the lawmaker has conferred great latitude upon the courts in imposing the penalty for the violation of such law; the punishment ranging all the way from a fine of one hundred dollars to imprisonment in the penitentiary. It was evidently the object of the legislature to embrace within the purview of this section all the multifarious lottery schemes in vogue, from the most magnificent, and therefore *Page 158 most dangerous to the welfare of society, down to the most trifling in character and results. It is with this view evidently that the penalty is graded as we find it; and where such is the case it becomes more important to disclose in the indictment (for the reason already stated) the nature of the particular transaction complained of."
In 1899 the legislature passed an act to prohibit the maintaining, operating, conducting, playing or using of nickel-in-the-slot machines or other devices of like character, involving the use of dice, cards or any substitute therefor, wherein there enters any element of chance (Laws 1899, page 250). Two years later, in 1901, the legislature enacted a law (Laws 1901, page 66), the first four sections of which are now §§ 14-746 to 14-749, inclusive, Oregon Code 1930. The title of the act is as follows: "An act to prohibit the maintaining, conducting, operating, playing or using nickel-in-the-slot machines or other devices of like character wherein there enters any element of chance."
Section 5 of the act repeals all acts or parts of acts in conflict therewith; and § 6 provides that, "inasmuch as there is some doubt as to the validity of the law of February 24, 1899 [the 1899 enactment above mentioned], covering the same subject-matter, and inasmuch as the moral sentiment of the state demands this enactment in the interest of the youth of the state, and that the law shall be effective at once, this act shall be operative from and after its approval by the governor."
Section 1 of the act (§ 14-746, supra) provides as follows:
"Any person or persons who shall conduct, maintain, or operate, either as owner or owners, proprietor or proprietors, lessee or lessees, employee or employees, agent or agents, or who shall play or use any nickel-in-the-slot machine or other device of like character *Page 159 wherein there enters any element of chance, whether the same be played for money, checks, credits, or other thing or representative of value, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $10 nor more than $100, and in default of payment of the fine imposed shall be imprisoned in the county jail one day for each $2 thereof."
The language used in the information in this case clearly charges the defendant with violation of § 14-746, supra, referred to as the nickel-in-the-slot-machine statute. That statute is not limited in its application to nickel-in-the-slot machines exclusively or to any particular form of slot machines, but covers all other machines or devices of like character in the operation of which an element of chance enters, when such machines or devices are played for money or other representative of value. The machine or device which the defendant is charged with maintaining and conducting is operated by placing a nickel in the slot. According to the information, chance preponderates, and therefore there is "an element of chance" in the operation of the machine. Obviously, from the facts stated in the information, it is played for money. It is apparent from reading this section of the code that the legislature did not intend to limit the scope of the act to any one type of machine or device, but attempted by the passage of this act to eradicate the evils attendant upon the operation and maintenance of such mechanical gambling contrivances.
Section 14-746, supra, describes more aptly than does any other of our criminal statutes the machine or device which the defendant is charged with maintaining and operating. It was enacted with the legislative intent of covering particularly the kind of gaming with which the defendant is charged. *Page 160
In the following cases it was held that pinball games, or, as sometimes termed, marble machines, were gaming machines or devices within the ban of the respective statutes of the jurisdictions in which the decisions were rendered: Houghton v.Fox, (Tex Civ. App.) 93 S.W.2d 781; Redd v. Simmons,175 Miss. 402 (167 So. 65); Howle v. Birmingham, 229 Ala. 666 (159 So. 206); Steed v. State, 189 Ark. 389 (72 S.W.2d 542);Milwaukee v. Burns, (Wis.) 274 N.W. 273. In State v. Barbee,187 La. 529 (175 So. 50), the supreme court of Louisiana held that the operation of a nine-ball marble table constituted a lottery. The organic law of that state provides that "gambling is a vice and the legislature shall pass laws to suppress it", and that "lotteries and the sale of lottery tickets are prohibited in this state."
Section 9-215, Oregon Code 1930, admonishes us that, "In the construction of a statute the intention of the legislature . . . is to be pursued, if possible". With that purpose in mind, we have referred to the laws in force in the Oregon territory at the time the constitution was adopted, prohibiting gaming, and in particular those referring to certain types of gambling and the conducting and maintaining of lotteries; the continuance of those laws in force by express provision of the constitution, until altered or repealed; the distinction observed by the territorial legislature and by the state legislature between lotteries and forms of gaming involving an element of skill; the early ruling of this court that "no one can be punished for doing an act, unless it clearly appears that the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it", and declaring § 666 of the code of criminal procedure unconstitutional because the gambling devices therein prohibited were not sufficiently *Page 161 described by the statute (State v. Mann, supra); the later holding by this court that because of the scope of our lottery statute, and the latitude allowed the courts in imposing sentences for violation thereof, there was "special reason for particularity and certainty in the indictments so far as `the nature and cause of the accusation' are concerned" (State v.Dougherty, supra); and many other matters forming the historical background of the existing laws relating to gaming.
The statute which prohibits the setting up or promoting of lotteries (§ 14-801, supra) does not in any way attempt to define what a lottery is. When it came to making unlawful playing at or conducting certain games, both the territorial and the state legislature deemed it necessary to enact a law specifically defining the games which were intended to be prohibited: § 14-739, supra. Later, in 1899 and 1901, because of the detrimental effect upon the youth of the state resulting from playing slot machines, the legislature enacted the nickel-in-the-slot machine statute (§ 14-746, supra), apparently deeming the existing laws relating to lotteries and certain gambling games not sufficiently comprehensive to cover maintaining and using slot machines.
In addition to these laws the 1864 criminal code contained § 659 (now § 14-722, Oregon Code 1930), commonly known as the nuisance statute. That law has been invoked when the act complained of is not prohibited by some other criminal statute:Multnomah County Fair Association v. Langley, 140 Or. 172 (13 P.2d 354).
From the various definitions quoted and the numerous decisions hereinabove cited it is apparent that there is no well-settled definition of the term "lottery". In recent years considerable controversy has arisen in *Page 162 various jurisdictions in determining whether to constitute the playing of certain machines a lottery there must be an absence of skill and the playing must be governed entirely by chance. Other courts take the view, regarded as the dominant one, that where chance predominates, whether there be slight or substantial skill involved, the playing or conducting of the device, scheme, game or contrivance constitutes a lottery, if the other essential elements of a lottery, namely, consideration and reward, are also present.
Some of the courts go so far as to hold that even though chance predominates and there are involved the other essential elements, consideration and reward, nevertheless, in order to constitute a device or scheme a lottery, the use of such device or scheme must be of such a nature as to create a "widespread pestilence". As was said in the brief of the district attorney and the attorney general, "It appears from reading the Oregon cases that an attribute of all lotteries is the `wide-spread pestilence' referred to in the foregoing quotation." The quotation mentioned is an excerpt from the decision of the United States supreme court in Phalen v. Virginia, 49 U.S. 163 (12 L. Ed. 1030), set forth in Ex parte Kameta, 36 Or. 251 (60 P. 394, 78 Am. St. Rep. 775). It would therefore appear from many of the authorities that in order to convict a defendant charged with maintaining and conducting a lottery it would be necessary not only to prove beyond a reasonable doubt that in the act with which he is charged chance predominated but also that the scheme or contrivance which he was maintaining or conducting was, or was susceptible of becoming, a "wide-spread pestilence".
Our statute prohibiting lotteries does not define what constitutes setting up and maintaining a lottery. *Page 163 In addition to this statute we have in this state other laws which, although they do not define them as gambling, prohibit certain acts which in their nature constitute gambling as that term is generally understood: §§ 14-739 and 14-746, Oregon Code 1930. These latter laws specifically mention the games, schemes and devices which are prohibited and provide penalties for violation of the statutes.
In State v. Schwemler, 154 Or. 533, 535 (60 P.2d 938), it is said:
"Most gambling games, however, are not lotteries and, therefore, are not included within the constitutional prohibition. The distinction between the ordinary forms of gambling and a lottery was recognized by the framers of the constitution by prohibiting the enactment of any law legalizing lotteries and by making no reference whatever to other forms of unlawful gaming. The distinction was also recognized by the legislature in defining what shall constitute unlawful gaming and in prescribing a different punishment for the offense of promoting a lottery from that prescribed for unlawful gaming."
Decisions from other jurisdictions defining what does or does not constitute a lottery must be read in connection with the laws of the respective states from which they emanate. Our attention has not been directed to any adjudication from another jurisdiction wherein the court has held that a certain course of action constituted setting up and maintaining a lottery, where such course of action was prohibited and penalized by some other statute than the one prohibiting lotteries. Were it not for the fact that we have in this state a statute specifically prohibiting setting up and maintaining nickel-in-the-slot machines and providing punishment therefor, there might be reason to hold that the legislature intended to include in the law prohibiting *Page 164 lotteries the act with which the defendant here is charged.
A number of states have held that certain gaming is or is not a lottery, depending upon whether or not it has become a "wide-spread pestilence". There is no reason, however, in this state to apprehend that the patronage or use of nickel-in-the-slot machines such as the one which the defendant is charged with setting up and operating would ever attain such proportions, because their use and operation are prohibited by statute, and it is to be supposed that officials of the state who are in charge of enforcing the law will prevent any widespread or general use of such machines or devices.
The information in this case charges the defendant with "setting up and operating a certain device commonly known as a pin ball game for money, which pin ball game involved an element of skill, but in the playing of which the element of chance predominated". It then describes the manner and method of playing such game and concludes by stating that: "In the playing of said game the speed, course and direction of said marble or metal ball, and the hole on the playing surface of the board into which said marble or metal ball may drop, if any, is controlled to a certain degree by the skill of the player, but is determined principally by chance, and in the playing of said game the element of chance predominates over the element of skill . . ." The contention is made that, taking the information as a whole, the facts therein stated conclusively show that the skill used in playing the game is negligible and not substantial. Some of the definitions given in Funk Wagnall's Dictionary for "substantial" are: "Of or pertaining to substance; having real existence; not *Page 165 fictitious; as, a figment of the imagination withoutsubstantial being." It seems impossible to arrive at the conclusion that the information does not charge that there is a substantial amount of skill involved in playing the pinball game therein described. The positive language stating that the speed, course and direction of the marble or metal ball and the hole on the playing surface of the board into which the ball may drop are controlled to a certain degree by the skill of the player cannot be ignored; and this court cannot say as a matter of law that the skill of the player has no real existence, or that it is fictitious.
But even if it could be said, in spite of the allegations in the information, that the element of skill employed in playing the game is not substantial, the question of whether or not it was substantial would still be left for the jury to decide on the trial of the case. To hold that any game which involves a substantial element of skill does not constitute a lottery is in effect to adopt the pure chance doctrine as distinguished from the predominating chance theory.
It is, however, unnecessary here to determine whether in order to constitute a device or machine a lottery within the meaning of § 14-801, supra, the pure chance theory or the predominating chance theory be adopted and applied, or to determine whether or not the conducting and maintaining of the device with which the defendant is charged is, or is susceptible of becoming, a "wide-spread pestilence", for the obvious reason that the crime with which the defendant is here charged is one specifically prohibited by the nickel-in-the-slot machine statute, § 14-746,supra. By accusing him of violating this section of our code the conviction of the defendant is made certain and simple, if in fact he is *Page 166 guilty of conducting, maintaining or operating a device therein prohibited. On a trial under that section it is only necessary to prove that there enters into the playing of the device any element of chance and that the device is played for money or other thing of value.
If we are to pursue the intention of the legislature in the instant case, we must conclude that it was intended that any one guilty of the crime with which the defendant is charged must be prosecuted under the provisions of § 14-746, supra. It surely was not the intention of the legislature that the defendant could be prosecuted under both the lottery act and the nickel-in-the-slot machine statute, or that of numerous offenders guilty of similar acts some might be prosecuted under a statute making the violation thereof a felony, while others could be charged with the violation of some other statute making the crime charged a misdemeanor. To attribute such a purpose to the legislature would tend to create distrust in and disrespect for the administration of our criminal law.
As hereinbefore stated, the indictment does not accuse the defendant specifically of violating any particular statute. InState v. Jarvis, 18 Or. 360 (23 P. 251), this court said: "The name given to the crime with which the pleader sought to charge the defendant in the indictment is rape, but it seems a mistake in this particular; is an irregularity and is not fatal. The charging part of the indictment must be looked to, to determine the character of the offense." In State v. Sweet, 2 Or. 127, it was observed: "It was necessary to set out the facts in the indictment so that the proof would correspond with the facts charged; and if these facts charged describe the crime as defined by statute, it is sufficient, and the calling the offense embezzlement *Page 167 in the caption of the indictment does not constitute a variance from the definition given by the statute." See also: State v.Taylor, 50 Or. 449, 452 (93 P. 252); State v. Emmons, 55 Or. 352,357 (104 P. 882, 106 P. 451); and State v. Briggen,112 Or. 681 (231 P. 125). The information in this case was sufficient to charge the defendant with a violation of the provisions of § 14-746, supra.
For the foregoing reasons I concur in holding that the demurrer to the information should have been overruled. My concurrence, however, is based on the fact that the information charges a violation of § 14-746, known as the nickel-in-the-slot machine act, rather than § 14-801, Oregon Code 1930. *Page 168