Appellant reiterates his contention that he was guilty of running a lottery and was therefore improperly convicted of keeping and exhibiting a policy game. In support of his contention that the game described in the original opinion is not a game of policy, appellant cites Francis v. United States, 47 L. Ed. 508, in which the indictment charged Francis with conspiring to cause to be carried from one state to another certain certificates and instruments "purporting to be and to represent chances, shares, and interests in the prizes thereafter to be awarded by lot in the drawing of a lottery, commonly known as the game of policy."
The statute under which the prosecution proceeded provided as follows: "That any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same or deposited in or carried by the mails of the United States, or carried from one state to another in the United States, any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, so-called gift concert, or similar enterprise offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert, or similar enterprises offering prizes dependent upon lot or chance, to be brought into the United States, or deposited in or carried by the mails of the United States, or transferred from one state to another in the *Page 265 same, shall be punishable in the first offense by imprisonment for not more than two years or by a fine of not more than $1,000, or both, and in the second and after offenses by such imprisonment only."
28 Stat. at L. 963, U.S. Comp. Stat. 1901, p. 3178.
In the course of the opinion Mr. Justice HOLMES stated the facts before the court, as follows: "It appears that the lottery in question had its headquarters in Ohio and agencies in different states. A purchaser, or person wishing to take a chance, went to one of these agencies, in this case in Kentucky, selected three or more numbers, wrote them on a slip, and handed the slip to the agent, in this case to the defendant Hoff, paying the price of the chance at the same time, and keeping a duplicate, which was the purchaser's voucher for his selection. The slip in this case was taken by the defendant Edgar to be carried to the principal office, where afterwards, in the regular course, there would be a drawing by the defendant Francis. If the purchaser's number should win, the prize would be sent to the agency and paid over. The carriage from one state to another, relied upon as the object of the conspiracy, and as the overt act in pursuance of the conspiracy, was the carriage by Edgar of slips delivered to Hoff, as above described."
We are unable to agree with appellant that, in reversing the judgment of conviction, the court held that the game above described was not a game of policy, as alleged in the indictment. The court merely held that the slips carried from Kentucky to Ohio were not papers purporting to be or represent a ticket or interest in a lottery. It is true that the court used the term "lottery." However, it does not follow that the use of such term was an expression on the part of the court that the game described was not a game of policy. We quote from the opinion, as follows: "The assumption has been that the slips carried from Kentucky to Ohio were papers purporting to be or represent a ticket or interest in a lottery. But in our opinion these papers did not purport to be or do either. A ticket, of course, is a thing which is the holder's means of making good his rights. The essence of it is that it is in the hands of the other party to the contract with the lottery as a document of title. It seems to us quite plain that the alternative instrument mentioned by the statute, viz., a paper representing an interest in a lottery equally is a document of title to the purchaser and holder, — the thing by holding which he makes good his right to a chance in the game. But the slips transported, as we have pointed out, were not the purchasers' *Page 266 document. It is true that they corresponded in contents, and so in the one sense represented or depicted the purchasers' interests. But 'represent' in the statute means, as we already have said in other words, represent to the purchaser. It means stand as the representative of title to the indicated thing, and that these slips did not do. The function of the slips might have been performed by descriptions in a book, or by memory, if the whole lottery business had been done by one man. They as little represented the purchaser's chances as the stubs in a check book represents the sums coming to the payees of the checks."
Appellant concedes that State v. Cronin, 88 S.W. 604, supports the contention of the state herein that the game we have described in the original opinion was a game of policy. He insists, however, that the decision in that case is not in harmony with the holding of Francis v. United States, supra. As already pointed out, we are of opinion that there is nothing in the case last mentioned which can be taken to militate against the conclusion expressed in the original opinion herein.
Believing that a proper disposition of the appeal was made in the opinion upon original submission, we are constrained to overrule appellant's motion for rehearing.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.