The question presented by this appeal is whether the relator, by this publication, advertised or published an account of a lottery. Section 327 of the Penal Code declares that any person who “ advertises or publishes an account of a lottery, whether within or without the State; stating how, when or where the same is to. be, or has been, drawn, or what are the prizes therein, or any of them, or the price of a ticket, or any share or interest therein, or where or how it may be obtained, is guilty of a misdemeanor.” It has been sufficiently shown that the relator is responsible for the advertisement, and if the article or notice published shows that the Florodora Tag Company is conducting a lottery, it is manifest that the publication contains a sufficient account of the lottery to render the relator liable.
The inquiry is thus narrowed to the question as to whether this is a lottery, and its solution depends upon the construction of section 323 of the Penal Code, which defines a lottery as follows: “A lottery is a scheme for the distribution of property by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance, whether called a lottery, raffle or gift enterprise, or by some other name.” It is not disputed that this is a scheme for the distribution of property among persons who shall have paid a valuable consideration for the privilege of participating therein. It is contended, however, by the relator, and this contention was sustained at Special Term, that the distribution is not to be made hy ohct/noe within the intent and meaning of this statutory.definition of a lottery. This, therefore, is the question presented for decision, and it is one of great public interest and importance.
It is manifestly impossible for any one to ascertain or know in advance the number of cigars in a given month upon which the government will attach revenue stamps of. the denomination of three
It is claimed, however, that those making estimates have, as a basis, the information given as to the number of cigars for which stamps were purchased during each month for the years 1900, 1901 and 1902, and that they may be ■ aided by acquiring knowledge of the condition of the tobacco trade both as to supply and demand, and that those possessing the greatest knowledge will be able to estimate more accurately than those without knowledge on the subject. This is undoubtedly true. It is claimed that it follows from the mere fact that those participating in the scheme may be able, by thus acquiring knowledge to aid their judgment, to estimate with a a greater degree of accuracy than others, that this is not a distribution of the property and prize money by chance within the prohibition of the statute. If, as has been held in some jurisdictions, the drawings or distribution must depend exclusively on chance, and the chances of winning or being successful cannot be aided in the least by the exercise of judgment, then unquestionably the scheme which the relator has advertised would not constitute a lottery. No case is cited and we find none directly in point in this State or controlling in principle.
In Reilly v. Gray (77 Hun, 402), which was an action to recover moneys bet on a horse race, it was held that poolselling did not constitute a lottery within the meaning of section 323 of the Penal Code, and the ground of the decision was that selling pools on horse races was prohibited by statute prior to the incorporation in • the Constitution of 1821 of the provision prohibiting the Legislature from authorizing lotteries and requiring it to enact laws to prevent the same, and that the legislation concerning poolselling has been since classified with the legislation concerning gambling and has been kept separate and distinct from the legislation concerning lotteries. In People ex rel. Lawrence v. Fallon (152 N. Y. 12) it was held that prizes offered by an association to the winners of horse races is not a lottery, the court adopting and following the reasoning of the court in Reilly v. Gray (supra), but the court made the
In People v. Gillson (10.9 N. Y. 389) it was held that a statute (Penal Code, § 335a) making it a misdemeanor to induce the purchase of one commodity,by giving a purchaser of a specified quantity thereof other property was unconstitutional; but there each purchaser of the same quantity was given the same privilege and there was no element of chance involved. In Hull v. Ruggles (56 N. Y. 424) it was held that selling candy in packages, some but not all of which contained tickets calling for silverware as prizes, was a lottery; but this depended entirely upon chance. In Wilkinson v. Gill (74 N. Y. 63) it was held that “ policy ” is a lottery. In Horner v. United States (147 U. S. 449) it was held that a sale of bonds by the government of Austria, redeemable at a given time, but a certain number of which to be selected by lot were to be redeemable at/figures far in excess of their par value as an inducement to purchasers, was a lottery within section 3894 of the United States Revised Statutes (as amd.) regulating the use of the mails, but the selection of the bonds that were to be redeemed for more than their face value was a matter solely of chance. In Dion v. St. John Baptiste Society (82 Maine, 319) it was held that a scheme by which a charitable association offered a prize to the person in some profession, office or occupation in whose name the most
These are the only adjudicated cases to 'which our attention/ has-been drawn, or which we have found, that - have any direct bearing upon the question. While, therefore, there appears to be no decision in this jurisdiction in- point on the question at bar, the weight of authority elsewhere seems to be in favor of confining the lottery statutes to cases where the disposition of money or other property rests exclusively upon chance. A retrospect of the constitutional and statutory provisions of this State leads to the conviction that such also should be the interpretation of section 323 of the Penal Code. Prior to, 1813 both public and private lotteries were authorized and regulated by special statutes in óur State. By ch'apter 198 - of the Laws of 1813 lotteries then authorized • or thereafter to be authorized were regulated. ■ (See l R. L. 270.) Chapter 10 of the-Revised Laws of 1813 also contained a provision prohibiting private lotteries except as authorized by statute. (2R, L-187.) By chapter 206 of the Laws of 1819 private lotteries .were, except as authorized by the Legislature, prohibited and public lotteries were regulated and restricted. Section 11- of article 7 of the Constitution of 1821 provided as follows: “No lottery shall hereafter be authorized- in this State; and the Legislature shall pass laws to prevent, the sale of all lottery tickets within this. State, except in lotteries already provided
Prior to the Constitution of 1821 there were special statutory provisions prohibiting horse racing for stakes and betting on horse races and prohibiting “ excessive, and deceitful gaming ” (Laws of 1802, chap. 44; Laws of 1801, chap. 46.; see 1 R. L. 222,152). However, after lotteries were prohibited the Legislature from time to time extended the laws prohibiting betting on horse races and gambling (Laws of 1851, chap. 504; Laws of 1877, chap. 178; Penal Code, tit. 10, chap. 9). In many of the forms of gaming and gambling prohibited by these statutory provisions the disposition of the property depended upon chance and a valuable consideration was paid by the person entitled to participate therein; but the chance was or was supposed to be influenced more or less by the exercise of skill and judgment. It thus-appears from the history of
It may be well for the Legislature to prohibit such forms of competition by declaring enterprises of this character .to be unlawful, but it is evident that these methods resorted to in recent years by merchants and traders engaged in ruinous competition were not foreseen in the early days when lotteries were prohibited and, therefore, their prohibition is not within the purview of the lottery statute. A penal statute should be so drafted that, an honest business man may know whether or not he is offending against it. If the court should attempt to give a construction to the lottery statute by which. dispositions of property depending not wholly upon chance would be included within its prohibition there would be difficulty in the practical application of the law. If we should say that it is immaterial that skill or judgment may influence the determination if the disposition of the property still is mainly controlled by chance, how could a business man determine that question with safety. He
It follows, therefore, that the order should be affirmed.
Patterson and Hatch, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.
Order affirmed.