On Appellant's Motion for Rehearing.
After we handed down our former opinion and before the hearing on this motion for rehearing, the Court of Criminal Appeals, on February 2, 1938, overruled the motion for rehearing in the case of Cole v. State, 112 S.W.2d 725, and its opinion became available to us on this motion for rehearing. We do not doubt that the facts in this case make of it the legal equivalent of the Cole Case. We found in our original opinion that no direct charge was made for the right to participate in the gift enterprise that appellee conducted in connection with its theatre business. This right to participate, we in effect held, was not based on a consideration — giving to the word consideration the legal value ordinarily given to it as the
sine qua non of a valid, enforceable contract. All that was required of one desiring to participate in a drawing, was to have his name entered on the register. But if his name was drawn, he had to present himself within 3 minutes in the showhouse. This was a strong motive, and was intended as such, to make one who desired to participate, pay for an admission and be present on the night of a drawing. If the one whose name was drawn was not required to present himself in the showhouse until the night succeeding the drawing in order to become available to receive the award, themotive to purchase a ticket of admission would be greatly weakened. We construe the opinion in the Cole Case to hold, what we conceived to be amotive, to be indirect consideration, and further to hold that indirectconsideration is consideration, and that there was therefore present in the transaction the essential element of consideration to make of it a lottery. Whether we have correctly understood the basis of the ruling made in the Cole Case or not, it is clear that the effect of the ruling there made is to hold that appellee in the instant case was violating the criminal statutes of the State against lotteries in conducting Buck nights. Therefore, in as much as the Supreme Court — in dismissing an attempted certification of that question to it by this court — has made clear that it did not decide that question in the Wink Case (cited in our original opinion), we have concluded that we are bound to follow the ruling in the Cole Case, construing the criminal statutes. The motion is therefore granted, our former judgment set aside, the judgment of the trial court reversed, and the prayer for temporary injunction granted.
Motion for rehearing granted, former judgment of affirmance set aside, judgment of the trial court reversed, and temporary injunction as prayed for granted.
PLEASANTS, C. J., absent.