People v. Rehm

SCHAUER, J., Concurring.

I concur in the judgment, not upon the theory that the scheme disclosed by the evidence is inherently incapable in any event of being conducted as a bona fide contest of skill, but solely upon the ground that the evidence is sufficient to support a finding that such scheme in this case was understood by the defendant to possess all the necessary attributes of, and to operate as, a lottery. Some of the suggested cartoon titles appear to me to be more appropriate than others and I am not prepared to hold that some one title in each instance may not rationally be shown to be most appropriate of all. If one title only were obviously descriptive of each cartoon, then the elements of keen observation, skill and industry in differentiation would indeed be absent and such fact might- be inferential of the character assigned to the enterprise.

As disclosed by the authorities cited in the opinion of Judge Bishop and the concurring opinion of Presiding Judge Shaw, which need not here be reiterated, the fact that skill may enter into a “contest” is not necessarily determinative of its character. The project in this case readily admitted of use as a lottery and the fact that it was understood that- it was to be so used and that the tickets were understood to represent chances therein and were purchased for that consideration *761rather than for gaining admission to, and privileges in, Grand View Park, Singae, New Jersey, may, I think, be inferred circumstantially from the evidence. That the plan portrayed is a subterfuge is suggested by the statement in defendant’s Exhibit 2. “The Grand National Treasure Hunt Contest gives one an opportunity to win large cash prizes with the protection to the participant of entering a contest which conforms with all the laws of the government, ’ ’ when considered in its relationship to all the other circumstances, shown.

To establish defendant’s guilt of the offense with which he is charged, it was not necessary to prove that he possessed a ticket to an actual lottery drawing. The ordinance (city of Los Angeles No. 37,737, N. S.), provides in material part: “Section 1. It shall be unlawful for any person to have in his possession any lottery ticket, or any ticket, bill, paper . . . or any other object purporting or understood to be ... a ticket, chance, share, or interest in, or depending upon the event of, a lottery. ...”

I am satisfied that the evidence is sufficient to have warranted the trial court in finding, as it impliedly did find, that the defendant understood and believed that he possessed tickets in and to an enterprise which encompassed all the factually essential elements of a lottery but which he thought was cleverly enough devised to escape the onus of penal sanction. Upon such finding the judgment is proper.

Rehearing denied.