Queen v. State

• Decision Date: 20 December 1922
• Docket Number: (No. 7113.)
• Citation: 246 S.W. 384
• Parties: QUEEN v. STATE.
• Court: Texas Court of Criminal Appeals

246 S.W. 384

QUEEN v. STATE.

(No. 7113.)

Court of Criminal Appeals of Texas.

December 20, 1922.

Appeal from Milam County Court; Jeff T. Kemp, Judge.

John Queen was convicted of violating the lottery law, and he appeals. Affirmed.

A. J. Lewis, Co. Atty., of Cameron, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the county court of Milam county of a violation of the lottery law, and his punishment fixed at a fine of $100.

There are two counts in the information. Responsive to appellant's motion to quash, the first count was held bad, and the case was tried under the second count which is as follows:

"On or about the 8th day of April, 1922, in Milam county, Tex., one John Queen did then and there establish a lottery, the same being then and there a scheme and device for the distribution of chewing gum and trade checks by chance among those patronizing said scheme, the said scheme being described substantially as follows: The said lottery being then and there known as a `chewing gum vending machine,' the scheme being to deposit a nickel or five-cent piece in the slot or receptacle of said machine, whereby the person so depositing said coin upon the operation of said machine receives a package of chewing gum, whereupon the machine registers or indicates that upon the next succeeding play or deposit of a coin the person so playing same will receive from said machine nothing, or he may receive an indicated number of `trade checks' in any amount up to 20 and which said trade checks are each then and there of the value of five cents in trade, and can be so exchanged with the owner and controller of said machine and in his store and place of business where said lottery is established for goods, ware, and merchandise at said value of five cents each, and further, after the receipt by the player or person using said machine of said trade checks, said trade checks themselves, in lieu of said coin, can be played and operated in said machine, upon the chance to receive a greater number of said checks in return for the one so risked and played therein, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state."

It thus appears that there was a direct charge of establishing a lottery and also a description of the device or machine, the maintenance and establishment of which constituted said lottery. While this exact device seems not to have been considered by the courts of this state, others very similar have been, and the identical machine is no stranger in the courts of some of our sister states. In Lytle v. State (Tex. Cr. App.) 100 S. W. 1160, the device consisted of a machine which gave out no blanks to the player who deposited his nickels in the slot, but to a bit of music and the accompaniment in appearing and disappearing lights, red, blue, green, and white, a check came forth from the machine, entitling the player to 5, 10, 15, or 25 cents worth of merchandise in the store of the operator. A player at said machine was held guilty of betting at a gaming table and bank, and it was stated that the device was covered by statutes against the exhibiting of such games. Christopher v. State, 41 Tex. Cr. R. 235, 53 S. W. 852; Donathan v. State, 43 Tex. Cr. R. 427, 66 S. W. 781; and Meeks v. State (Tex. Cr. App.) 74 S. W. 910—are cited in said opinion in support thereof. In People ex rel. v. Jenkins, 153 App. Div. 512, 138 N. Y. Supp. 449, it was held that a machine apparently identical with that described in the information and shown by the testimony to have been displayed by appellant in the instant case was held a gambling device. The court said:

"The element of chance lies in the fact that upon the turning of the lever and the deposit of the gum and number of checks indicated there is further indication of how many trade checks, if any, may be obtained upon the dropping of the second nickel. The number of trade checks, however, which can be obtained upon the dropping of the second nickel is only indicated after the first nickel has been dropped and the lever turned. Thus, in addition to the gum and trade checks indicated as the certain receipts upon the dropping of the nickel, is given an option to obtain a package of gum and an uncertain number of trade checks upon the dropping of the second nickel. That this uncertain option has in it such an element of chance as constitutes gambling can hardly be questioned. In fact, this element of chance only gives to the machine its value; and that its use is within the direct prohibition of the statute seems clear."

Also in State v. Googin, 117 Me. 102, 102 Atl. 970, the Supreme Court of Maine held a machine identical to that described in this information and proof to be a gambling device. In that opinion the court said:

"But respondent says the gum machine involves no element of chance; that each play of the machine is a completed transaction, and shows precisely what the player is to receive, and what the machine is to give; that there is no contract, express or implied, that the player shall have a second or third play to avail himself of the opportunity of obtaining the trade checks; that, this being so, there is no element of chance. But the fallacy of this contention is found in the assumption that the machine deals with the individual, whereas by its method of operation, of necessity, it deals with the public. It is an automatic device, the operation of which is planned in every detail before it is put in use. It is then placed in public places, to be automatically worked. It is the dumb agent of its owner, inviting the public to operate it as often and as many times as any one of the public may please. We find no limitation upon the right of the same person to operate over and over again. It is undoubtedly this unlimited right that allures the patronage that makes the...