(dissenting). The evidence shows no possession by defendant of a policy slip which represented and was a record of a chance, share or interest in any numbers sold, drawn or selected in a game commonly called policy and commonly used in carrying on and promoting the game called policy. This is the so-called policy slip:
*455“ (This circular is given away absolutely free to the public)
“ No. 15165 Date...............
“ In order to acquaint our trade with the High Grade line of Diamonds and Jewelry we have in stock we are distributing our advertising money direct to the public and offering this circular free of charge.
“ Here is Our Special Offer
“ If the last five figures of the N. Y. Stock Exchange total weekly sales as published every Monday morning (in the N. Y. Times) correspond at any time during 39 consecutive weeks from the date of this advertising circular with the number and date stamped hereon which is given away free to the public, we will give to any holder of record upon presenting same at our office within a week of appearance
“ $500.00 in Cash
“or 1 Solitaire Diamond Valued at $500 “ If the last four figures of the weekly sales report of Monday’s Stock Exchange should be one or two higher or one or two lower, than the numbers on this circular we will give you
“ $250.00 in Cash
“ or 1 Solitaire Diamond Valued at $250 “ If the last four figures of the weekly sales report of Monday’s Stock Exchange correspond with the last four figures on this circular we will give you
“ $100.00 in Cash
“ or 1 Solitaire Diamond Valued at $100 “ If the last three figures of the N. Y. Stock Exchange correspond with the last three figures on your circular we will give you free a
“ $39.00
“ ARTICLE OF JEWELRY
“Advertising Circular
“ OUR POLICY
“ Is to make every possible effort to please our customers. If you are pleased tell others, if not tell us.
“ LONDON JEWELERS, INC.
“ OUR GUARANTEE
“ We guarantee our merchandise to be as represented and back same with our entire capital and experience.
“ YOUR CHOICE
“ We carry a complete line of jewelry, from $39.00 and up.
“Advertising Circular.”
This is no policy slip.
*456The rule in New York is that in order to make out a case under our statute (as to lotteries), the court must find in the facts charged an element of risk; in other terms, there must be something of value ventured for some gain. The feature of a gamble must be present in all its aspects. Valuable consideration must be parted with, or there must be an express or implied agreement to pay it. No feature of loss or gain for a value given is found here. Neither is this scheme a lottery. In a lottery as commonly defined a pecuniary consideration must be an accompaniment of the right to participate in the chance or lot. “ Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery.” (Hull v. Ruggles, 56 N. Y. 424.)
This was the police officer’s testimony who made the arrest and presented the charge: “ Q. So you were not paying anything for this at all, were you, that is, People’s Exhibit 1? A. I didn’t pay anything. * * * Q. And the chance was not to cost you any more. A. No. By Justice Caldwell: Q. But you were not to get the chance unless you bought a watch, were you? A. Why, the transaction stopped right there, your Honor, when he sent me to the desk and the girl took my name and address. Q. Did he say buying the watch he would give you a chance? A. He did not. By Mr. Kunstler: Q. You asked him for the chance, did you not? A. I did. That is all. People rest.”
Thus no crime was made out and defendant should have been acquitted and discharged.
The judgment appealed from should, therefore, be reversed and the defendant discharged.
Judgment affirmed.