Holmes v. Saunders

DOOLING, J.

This is an appeal on the judgment roll alone from a judgment for damages for the conversion of an automobile. The second amended complaint contains the following allegations:

“That . . . defendants . . . offered to subscribers to the Associated Bulletin, during its circulation drive, for a con

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sideration of One ($1.00) Dollar paid for a six months subscription thereto, delivery of the Associated Bulletin for the period of six months and honorary membership in the Associated Clubs of California, Inc., said subscription being evidenced by a numbered ticket then delivered to the subscriber, and entitling the holder, and subscriber aforesaid, of the numbered ticket drawn at the Oakland Auditorium Arena on a certain date therein named ... to One (1) Buick Sedan Automobile ...”

This is followed by allegations that plaintiffs became subscribers by the purchase of a numbered ticket, that the number of their ticket was drawn and they were declared to be winners of the Buick automobile and thereupon became its owners. All of these allegations were found to be true by the trial court.

Section 319 of the .Penal Code provides:

“A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it. . . .” '

The allegations above quoted from the second amended complaint which the court found to be true, might have been drawn with this definition in mind. The scheme as pleaded and found is one “for the disposal of property,” a Buick automobile, “by chance,” the drawing of a number, “among persons who have paid . . . valuable consideration,” one dollar.

The consideration to make such a transaction a lottery need not be paid exclusively for the chance to win the prize. It is sufficient that the consideration, as here, be paid for something else and the chance to win the prize.

(People

v.