THE UNITED STATES, PLAINTIFF AND APPEELLEE, VS. WALTER E. OLSEN AND BILLY MARKER, DEFENDANTS AND APPELLANTS.

The appellants in this case were convicted of operating a lottery. The facts
upon which the charge is based are that Walter E. Olsen and Co., dealers in
tobacco, and especially cigars and cigarettes, desiring to introduce to the
Philippine trade a brand of cigarettes known as the “Omar” brand, conceived and
put into execution a scheme by which it was hoped to place in the hands of a
larger number of persons packages of the cigarette named. To that end, and
purely as a method of advertising and of introducing the cigarette to the trade,
the appellants, acting for and on behalf of the company, inclosed a certain
coupon inside of one of the packages of Omar cigarettes and then placed the
package among about five hundred similar packages in such manner that it could
not be distinguished from them. They thereupon advertised that the 500 packages
of cigarettes would be sold to the public at the regular price, and that the
person who was fortunate enough to buy the package containing the coupon would
be entitled to receive from the company a gold watch described in the
advertisement. The 500 packages were to be sold at 30 cents a package, which was
the regular market price of the cigarette at that time. Nothing in addition to
the market price was required to be paid by a purchaser of any one of the 500
packages. Every person who bought one of the packages received the full value of
his money in cigarettes and, accordingly, lost nothing by the purchase. On the
other hand, the company gained nothing by the sale of any one of the 500
packages, and necessarily lost the value of the watch in case all of the
packages were sold. The situation presented, therefore, was such that a person
becoming a party to the scheme by purchasing a package of cigarettes could lose
nothing while the company from which the cigarettes were purchased could gain
nothing, except the profit normally obtained by the sale of any other package of
cigarettes. In other words, a purchaser of a package of cigarettes paid
absolutely nothing for the naked chance to win the watch; while the company did
not take and could not possibly take anything from the purchaser in return for
the chance which it gave him to win the watch. In other words, the player could
lose nothing and the operator could gain nothing by the venture.

Upon these facts the appellants were charged with maintaining and operating a
lottery in violation of Act No. 1757. They were tried and convicted and
sentenced to pay a fine of P10, with subsidiary imprisonment in case of
nonpayment. They appealed.

We are of the opinion that the judgment of conviction cannot stand. We base
that opinion on (1) the title of Act No. 1757; (2) the nature of the Act itself
as shown by the essential provisions thereof; and (3) the connection, and,
therefore, the sense, in which the word lottery is used in the Act and the
mischief which the Act sought to prevent.

The Act is entitled “An Act to prohibit gambling,” etc. Section 1 of
the Act provides as follows:

“Gambling within the meaning of this Act consists in the playing of any game
for money or any representative of value or valuable consideration or thing, the
result of which game depends wholly or chiefly upon chance or hazard, or the use
of any mechanical invention or contrivance to determine by chance the loser or
winner of money or of any representative of value or of any valuable
consideration or thing.”

Section 2 defines a gambling house; section 3 defines vessel, or part
thereof, to which the public is ordinarily admitted; section 4 punishes any
person having charge of gambling in a public place; section 5 punishes any
person being in charge or possession or control of any building, structure, or
vessel, or any part thereof, who permits any gambling game to take place therein
at which game a charge of any kind is made for playing or for the use of the
premises or apparatus, or for which game any percentage is taken or collected;
section 6 punishes any person who shall keep, maintain, or have charge or
possession or control of any gambling house, or who shall have any interest in
any gambling house; and section 7, the one under which the appellants were
charged and convicted, punishes “the playing at and the conducting of any game
of monte, jueteng, or any form of lottery or policy or any banking or
percentage game.” The other sections and parts of some of the section already
referred to deal with the rights of persons who have lost money or other
valuable thing while playing prohibited games, and with the punishment of
officers charged with the suppression of gambling who fail to perform their
duties. As will be seen from these observations and references, the Act is
essentially and solely a gambling Act. It deals exclusively with
gambling games or operations. It prohibits only those games or
operations in which the player stakes his money or property, or some part
thereof, upon a naked chance—those in which for the money or property or some
part thereof which he invests he receives no consideration and can receive no
consideration. It prohibits that class of games or operations in which the
operator obtains something for which he has given nothing except a naked
chance.

The word “lottery” is found in the statute in conjunction with monte,
jueteng, policy and banking or percentage games. These words and phrases
deal exclusively with what the statute defines as gambling games or
operations—those in which the player pays something for a naked chance to win.
They do not refer to schemes, such as the one presented by this case, in which
the player, if we may call him such, obtains full value for his money’s worth is
a mere incident. The player loses nothing by virtue of his failure to win the
prize; while the playing of the scheme does not result in giving the operator an
opportunity to obtain the player’s money without giving therefor a consideration
which law and justice recognize not only as valuable but as adequate also.

We are aware that it might be urged that Walter E. Olsen & Co. gained or
obtained an advantage as a result of the scheme described in view of the
increased sale of the cigarette which the prize feature includes. Even so; aside
from the obvious reply which could be made, it is to be remembered that the
player (purchaser) lost nothing and could not possibly lose anything as a result
of his playing. He might gain but he could not lose. On the other hand, the
operator could not gain anything as a direct result of the element of chance. On
the contrary, he was certain to lose the value of the watch. Thus, in the case
before us the element of chance did not enter either as to the operator or the
player as it enters in the gambling transactions defined by the statute.

We are of the opinion that Act No. 1757 does not cover the case in hand. We
are not concerned with the question whether the scheme or system involved in
this case is or is not subject to criticism from the standpoint of business or
society or whether, if pushed to extremes, it would produce pernicious results.
Those are matters for the Legislature to consider. We are concerned solely with
the question whether it was the intention of the Legislature, when it passe Act
No. 1757, to include in its prohibition operations like the one before us and
whether, in carrying out that intention, such language was used as could
properly be held to cover them. In holding that the prohibition of the Act does
not include the acts charged in the information, we have been governed by the
principle, universally accepted, that an act will not be held to be a criminal
act unless the statute clearly and unmistakably makes it so.

The judgment appealed from is reversed and the accused acquitted. So
ordered.

Arellano, C. J., Torres and Araullo, JJ., concur.

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CARSON, J., dissenting:

I dissent. I am of opinion that the acts charged in the information are
included within both the spirit and the letter of the prohibitions of the
gambling statute (Act No. 1757).