There is not now, nor ever has been, an attempt in this State to define by statute what constitutes a lottery. The term is defined by the statutes of only a few of the states. Corpus Juris, Vol. 38, page 288, Note 10, lists only four, but says "that such definitions seldom vary in substance from those established by the courts." Having no definition in our statute we must resort to the meaning given the term by popular usage as determined by the various courts. When that is done it is clear that three things must concur to establish a thing as a lottery. (a) A prize or prizes. (b) The award or distribution of the prize or prizes by chance. (c) The payment either directly or indirectly by the participants of a consideration for the right or privilege of participating. Texas Jur., Vol. 28, page 409, Sec. 2, deduces from our own cases the *Page 557 rule stated, and it appears that in every case from our own court where a scheme has been denounced as a lottery that the three elements mentioned are shown by the facts to have been present. See Randle v. State, 42 Tex. 580; Grant v. State,54 Tex. Crim. 403; Prendergast v. State, 41 Tex. Crim. 358,57 S.W. 850; Holoman v. State, 2 Texas Crim. App., 610, and other Texas cases cited in Texas Jur. (supra). The same rule demanding the presence of the three elements named will be found stated in 17 Ruling Case Law, page 1222, and 38 Corpus Juris, page 286, with innumerable supporting cases cited under the text in each of said volumes.
The undisputed facts proven by the State show that no one present at the theater on "Bank Nite" was entitled to have their name or number participate in the drawing for the prize unless their names were registered in the "Bank Nite Book," for which registration no charge was made. Those absent from the theater on said night but whose names were likewise registered without charge also participated in the drawing. So it will be seen that no direct consideration passed from the participants to appellant. It occurs to the writer that the vice in the scheme — the things which make it a subterfuge — are the following: The party who is in the theater is immediately present to identify himself if perchance the number corresponding to the party's name on the book be drawn. If a number be drawn which corresponds to the name of some one not in the theater it appears to be a remote probability that such a one will be able to appear in the theater and identify himself within the short time allowed, and no possibility for such identification if the holder of the number drawn is not in the immediate vicinity of the theater. Therefore, it appears plain that those who have paid admission to the theater are in a more favorable position to claim the prize than one on the outside although the names of both have been registered in the book without charge. The practical working of the scheme is bound to be known to all patrons of the theater. If the prize would have gone to some one not present but remains unclaimed it is pyramided on the amount of the prize for the next "Bank Nite" drawing. The conditions naturally excite or increase a desire on the part of those eligible by reason of their names being registered to pay the admission price to the theater in order to be more favorably situated to claim the prize on a "Bank Nite" drawing, and in this way an indirect consideration does move from them to the operator of the scheme and furnishes the third indispensable element of a lottery. *Page 558
The writer is not unmindful that the courts of a number of our sister states have reached the conclusion that the scheme here resorted to was not a lottery. For instance, Iowa v. Hundling, 264 N.W. 608, 103 A. R. L., 861; New Hampshire v. Eames, 183 A. 590; People v. Shafer, 289 N.Y. Supp., 649; Tennessee ex rel v. Crescent Amusement Co., 95 S.W.2d 310; People v. Cardas, 137 Cal. App. 788, 28 P.2d 99. In other states the courts have reached the conclusion that the scheme here involved was a lottery; for instance, Commonwealth v. Wall (Mass.), 3 N.E.2d 28. We do not cite civil cases where courts of equity are controlled by somewhat more liberal rules than may be resorted to in the construction of criminal statutes. Having the highest regard for the opinion of the courts of our sister states, the writer is impressed with the view that where the present scheme has been held not to be a lottery the cases have turned upon a failure to show adirect consideration from the participants, or at least from a part of them, in the drawing for the prize, whereas unless our reasoning be faulty, there does appear to be an indirect consideration moving from the registrants in the book in the purchase of admission to the theater, thereby obtaining a more favorable situation to claim the prize than the outside registrants enjoy.
For the reasons stated, I concur in the opinion of affirmance.
ON MOTION FOR REHEARING.