Prendergast v. State

• Decision Date: 18 December 1899
• Citation: 57 S.W. 850
• Parties: PRENDERGAST v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

57 S.W. 850

PRENDERGAST v. STATE.¹

Court of Criminal Appeals of Texas.

December 18, 1899.

Appeal from district court, Galveston county; E. D. Cavin, Judge.

James Prendergast was convicted of establishing a lottery, and he appeals. Affirmed.

James B. & Charles J. Stubbs, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of establishing a lottery, and his punishment assessed at a fine of $100, and he prosecutes this appeal.

Appellant moved to quash the indictment on the ground, as alleged by him, that both counts in same were duplicitous, in that it charged that appellant did unlawfully establish a lottery, etc., and did then and there by said lottery dispose of certain personal property, etc.; the contention being that the establishing of a lottery, and disposing of property by lottery, are two distinct offenses, and cannot be charged in the same count. While it is true that they are distinct offenses, yet they are different phases of the same transaction, and not repugnant to each other. Duplicitous or repugnant matter will not be tolerated in the same count; but where there are several ways set forth in the same statute by which an offense may be committed, and are all embraced in the same general definition, made punishable in the same manner, while they are distinct offenses they may be charged conjunctively in the same count. Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; State v. Randle, 41 Tex. 292.

Appellant also contends that the indictment, or at least that part of the count charging the disposition of the ticket, should give the name of the party to whom the ticket was sold. It is not necessary to discuss this question, inasmuch as the count for establishing the lottery is good, and the proof appears to sustain said charge.

Appellant complains that the court instructed the jury that a slot machine was a lottery, on the ground that this was taking a question of fact from the consideration of the jury. This question resolves itself into the proposition as to what the proof showed. The evidence establishes these facts without controversy: That the alleged lottery was operated by means of a slot machine, which was about five feet high; that on the inside thereof was certain machinery, so constructed as to make it work automatically when it was in running order; that there were five slots, of different colors; that if you put a nickel into the slot of either red or black colors, and in falling into the machine it happened to touch a certain spring, it would set the machinery in motion, open a certain valve, and pay out a dime into a little pocket on the side of the machine, which was the winning. If the nickel was placed in the green slot, and in falling touched a certain spring, it would pay out a quarter; and so of the white, a half; and the yellow, a dollar. If the nickel did not happen to touch the right spring to make it pay, it would not pay anything. Of course, the person depositing the nickel in one of the slots would not always win, and whether such person won or lost would depend upon the internal mechanism and appliances inside of the machine, and whether in falling it would touch a certain groove or spring, or something else, that would open the value below and let the nickels out. If the nickel did not touch the right spring, and did not win, nothing would fall out. It was only when the particular spring or groove or mechanism was reached by the nickel that was put in the slot that the machine would release any money. The highest amount that could be won at any one time was a dollar. Every person who played did...