"El Debate Vs. Jose Topacio 044 Phil 278

What may be termed "the pure chance doctrine" is no longer upheld by the weight of authority in the United States. The element of chance is present even though it may be accompanied by an element of calculation or even of certainty. Counsel, therefore, practically admits himself out of court when he concedes that any element of chance is present, for let it be remembered that out law includes the phrase "depending in whole or in part upon lot or chance." (Public Clearing House vs. Coyne, supra; People ex rel. Ellison vs. Lavin [1904], 179 N. Y., 164; 66 L. R. A., 601 [estimate of the number of cigars on which a tax is paid during a specified month]; 25 Ops. Atty.-Gen. U. S., 286 [estimate of the total number of paid admissions to the World's fair at St. Louis, Missouri, from its opening to its close, and estimate of the popular vote cast for the winning candidate for President of the United States in 1904]; Stevens vs. Cincinnati Times-Star Company [1905], 72 Ohio St., 112; 106 A. S. R., 586 [guessing the number of votes that will be cast for a public officer at an election]; Waite vs. Press Publishing Association [1907], 155 Fed., 58; 12 Ann. Cas., 319 [estimate of the total popular votes to be cast in the election for the office of President of the United States].) It is difficult to select one of the cases cited to elucidate the point under consideration, because each and everyone of them contains well considered opinions. It was thus the decision of the United States Supreme Court in Public Clearing House vs. Coyne which marked the turning point toward a stricter application of the law. It was the decision of the Court of Appeals of the State of New York in People ex. rel. Ellison vs. Lavin, which included the best dissertation on the Philosophical subject of what constitutes chance. While it was the decision of the Federal Court in Waite vs. Press Publishing Association which had a splendid resume of the situation, followed by all the encyclopedias. We choose the latter because the more recent and because the briefest. As indicated, in the case of Waite vs. Press Publishing Association, the question before the court was whether a guessing contest inaugurated by a publishing association prior to an election, offering certain rewards or prizes to those persons who, prior to such election, submitted to the association the nearest correct estimates of the total number of votes cast for the office of President of the United States, and at the same time paid a certain sum as the subscription to a named periodical, was a contest of chance and a lottery, in violation of the laws of the United States and the laws of the State of Michigan. We quote: "Several years ago it was a doubtful question whether a so-called guessing contest was valid or not. Three attorneys-general of the United States (Miller, Griggs, and Knox) had in formal opinions sustained the validity of similar contest, and following them, Judge Thomas, in the case of United States vs. Rosenblum (121 Fed. Rep., 180), had refused to hold such a contest illegal, and had sustained a demurrer to an information against the president of a corporation then engaged in carrying on one. These rulings were in accordance with the trend of authorities in this country and England, the cases being cited in the opinion of Judge Thomas (121 Fed. Rep., 182). The exception to be noted was the case of Hudelson vs. State (94 Ind., 426; 48 Am, Rep., 171), in which the Supreme Court of Indiana held that a contest dependent upon the guessing of the nearest to the number of beans contained in a glass globe was a lottery or gift enterprise. The cases which sustained the validity of the various guessing contests all held that, since the correct number either did or would exist, more or less skill and judgment could be exercised in guessing it, and therefore the estimate of the nearest number to the correct one could not properly be considered a matter of mere chance. On the other hand, in the Hudelson case the court, for the first time, drew attention to the fact that, while the number beans in the glass globe would be fixed and definite, the ascertainment of that number could be nothing other than a mere matter of guessing, for it was impossible under the circumstances to ascertain the information upon which a correct estimate could alone be made. Subsequent to the decision in the Hudelson case came that of the Supreme Court of the United States in Public Clearing House vs. Coyne (194 U. S., 497; 24 U. S. Sup. Ct. Rep., 789; 48 U. S. [L. ed.], 1092; and People vs. Lavin, 179; N. Y., 164; 1 Ann. Cas., 165; 71 N. E. Rep., 753; 66 L. R. A., 601). In the Coyne case the court sustained a fraud order issued by the post-office department, directing the rejection of the mail of 'The Public Clearing House' on the ground that it was a fraudulent scheme and constituted a lottery. It is unnecessary to describe the details of the scheme; the facts will be found in the opinion. The court, speaking by Mr. Justice Brown, disposes of the matter by saying: " 'The scheme lacks the elements of a legitimate business enterprise, and we think there was no error in holding it to be a lottery within the meaning of the statute.' "This case was followed by Preferred Mercantile Co. vs. Hibbard (142 Fed. Rep., 877,) decided by Judge Lowell. "In the Lavin case (179 N. Y., 164; 1 Ann. Cas., 165; 71 N. E. Rep., 753; 66 L. R. A., 601), the scheme provided for the distribution of money among those purchasers of certain brands of cigars who should estimate most closely the number of cigars of all brands upon which the government would collect taxes during the month named. Discussing what constitutes chance, Judge Cullen, speaking for the court, says (page 168 of 179 N. Y., page 754 of 71 N. E. Rep.): " 'It is strictly and philosophically true in nature and reason that there is no such thing as chance or accident; it being evident that these words do not signify anything really existing, anything that is truly an agent or cause of any event; but they signify merely men's ignorance of the real and immediate cause. But though nothing occurs in the world as a result of chance, the occurrence may be a matter of chance to the observer from his ignorance of antecedent causes or of the laws of their operation.' "The court refers at some length to the Coyne Case (194 U. S., 497; 24 U. S. Sup. Ct. Rep., 789; 48 U. S. [L. ed.], 1092), and reaches the conclusion that the scheme before it falls far within the requisites of a lottery as defined in that case, under a statue very similar to the New York one. The two cases referred to, the Coyne case and the Lavin case, are cited by Attorney-General Moody in his opinion of Nov. 28, 1904 (25 Opinions of Attorney-General, 286), as authority for the reversal of the opinions of his predecessors holding that 'guessing contests' were not within the prohibition of the federal statutes. The schemes presented to Attorney-General Moody for his decision were dependent, the one upon estimates of the total number of paid admissions to the World's Fair at St. Louis, and the other upon estimates of the total vote cast for President in 1904. The conclusions he reached were as follows: " 'Conceding that the estimates in such a contest (the World's Fair contest) will be to some extent affected by intelligent calculation, the conclusion is, nevertheless, irresistible that it is largely a matter of chance which competitor will submit the nearest correct estimate. The estimates cannot be predicated upon natural and fixed laws, since the total number of admissions may be affected by many conditions over which the participants in this scheme have no control and cannot possibly foresee.' (Page 290.) "And again: " 'Neither of these contest is a "legitimate business enterprise." In each thousands invest small sums in the hope and expectation that luck will enable them to win large returns. A comparatively small percentage of the participants will realize their expectations, and thousands will get nothing. They are, in effect, lotteries, under the guise of "guessing contests." ' (Page 291.) "The last case to which we care to call attention upon the general question is that of Stevens vs. Cincinnati Times-Star Co. (72 Ohio St., 112; 73 N. E. Rep., 1058; 106 Am. St. Rep., 586). In this case the Supreme Court of Ohio passed upon a number of guessing contest carried on by newspapers in Ohio. They involved the total vote for a state officer at a coming state election. Respecting the nature of these contests, the court said (page 150 of 72 Ohio St., page 1061 of 73 N. E. Rep.): " 'It is true that one acquainted with the results of the elections of the state in previous years and educated in politics would have some advantages over one ignorant in those respects, yet it must be apparent even to a casual observer that the result would depend upon so many uncertain and unascertainable causes that the estimate of the most learned would be after all nothing more than a random and undecisive judgment. In the sense above indicated there is an element of skill, possibly certainty, involved, but it is clear that the controlling predominating element is mere chance. It was a chance as to what the total vote would be; it was equally a chance as to what the guesses of the other guessers would be.' xxx xxx xxx