Commonwealth v. Plissner, 295 Mass. 457, 463-64 (1936)

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(relating to a carnival crane game)

Generally speaking, the word "lottery" signifies a scheme for the distribution of prizes by chance. Commonwealth v. Mackay, 177 Mass. 345, 346, 58 N.E. 1027. The elements of a lottery are the payment of a price for the chance of a prize, the result depending on or being determined by chance. Commonwealth v. Sullivan, 146 Mass. 142, 144, 15 N.E. 491. Commonwealth v. McClintock, 257 Mass. 431, [***13] 434, 154 N.E. 264. Commonwealth v. Wall, ante, 70, 72. If a scheme is a lottery, the mere fact that the dominant purpose of its sponsor is to increase his business does not save it. People v. Lavin, 179 N.Y. 164, 167, 168. One of the evils aimed at, as has been stated with reference to a similar statute, is the offering of "bargains which appeal to the gambling instinct, and induce people to buy what they do not want by the promise of a gift or prize the precise nature of which is not known at the moment of making the purchase." Commonwealth v. Emerson, 165 Mass. 146, 148, 42 N.E. 559.

The simplest form of lottery is, perhaps, a game depending wholly on chance in which the skill of the player is not a factor, such as games popularly known as raffles and punch boards. See Commonwealth v. Wright, 137 Mass. 250, 251; Matter of Gray, 23 Ariz. 461, 462, 467, 204 P. 1029. The mere fact that skill as well as chance may enter into a game, [*464] however, does not prevent it from being a lottery. Compare Commonwealth v. Theatre Advertising Co. Inc. 286 Mass. 405, 410, 190 N.E. 518; Stevens v. Cincinnati Times-Star Co. 72 Ohio St. [***14] 112, 147, 73 N.E. 1058. With reference to cases where both elements are present, the rule generally stated is that if the element of chance rather than that of skill predominates, the game may be found to be a lottery. See Commonwealth v. Theatre Advertising Co. Inc. 286 Mass. 405, 410, 190 N.E. 518; People v. Lavin, 179 N.Y. 164, 170, 171, 71 N.E. 753; Stevens v. Cincinnati Times-Star Co. 72 Ohio St. 112, 148, 73 N.E. 1058; Multnomah County Fair Association v. Langley, 140 Ore. 172, 180, 13 P.2d 354.

In the cases at bar there was evidence from which the jury could have found that after a certain point in the operation of the machine, the player could no longer exercise any skill or even control over the mechanism, and that whether the grasping device secured and carried up any desired object depended on chance. It would seem, therefore, that the operation of the machine, under the above stated rule, could have been found to be a lottery even though an element of skill was present. If the machine did constitute a lottery it could have been found, and indeed it is not controverted, that the defendant was also guilty on the complaint charging him with [***15] keeping the machine in a place actually used and occupied by him. Compare Commonwealth v. Ward, 281 Mass. 119, 122, 183 N.E. 271. It follows, therefore, that there was no error in the denial of his motions for directed verdicts.