The appellant has filed a comprehensive motion herein, citing many authorities, and evidencing much research. These cited authorities, as pointed out by Judge Hawkins in his concurring opinion herein, in the major portion of instances are in search of a direct consideration moving from the donee to the donor, and failing to so find, same hold that a necessary constituent of a lottery is absent. In such concurring opinion we find anindirect consideration in the number of patrons more advantageously located within the theater, and readily accessible in the event of a favorable drawing of such patron's number, especially on account of the fact that only what is termed a "reasonable time" is allowed to elapse for the fortunate person to appear and claim such prize. As pointed out heretofore by Judge Hawkins, such consideration might come from the increased attendance of persons who pay the required sum, some of whom are brought to such theater for the practically sole purpose of participating in such drawing and being personally present in order to claim the prize, should their number be drawn. The donor of such prize is surely offering *Page 559 the same in order to increase attendance upon his show, and surely expects to have more people there at Bank Nights than would otherwise be present, and in their added attendance, and the money received therefor, he finds the consideration for his munificence.
If it be necessary that the consideration be paid by the participants in the drawing, then such is found in the large number whom it appears usually pack his theater on the "Bank Nights." A consideration may consist of a benefit moving to the donor of the prize regardless from whom the benefit may come. See Corpus Juris, Vol. 13, p. 311. Appellant testified that he thought since establishing a Bank Night that it is possible on Tuesday night it (the attendance) had increased some, and that the advertisement for his theater, he thought, was benefited by Bank Night, and in the light of our knowledge of human nature, we feel sure that unless such benefits had accrued, he would not have continued such Bank Nights.
It is also contended that there is a fatal variance between the allegation and the proof in that the allegation is that the prize provided in such lottery is $25.00 in money, and that by means of said lottery appellant did dispose of such $25.00 in money to Elizabeth Johnson, whereas the proof was that said Elizabeth Johnson, on the day succeeding the drawing, went to the bank and received from the bank a check which she cashed and received $25.00 in money on such check.
It occurs to us that the check was merely the vehicle by which the money was passed to the said Elizabeth Johnson. We have heretofore held in the case of Wimer v. State, 48 S.W.2d 296, that the check upon which the money was paid was simply an instrument through which the money was received, citing numerous cases in support of such doctrine, and that in such instance there was no variance in the allegation of money, and the proof that a check was received which was paid in money.
This matter has been gone into fully not only in the opinion of the late lamented Judge Lattimore, but also in the concurring opinion herein. We are aware of the fact that some of the decisions of other states are in conflict with the one entertained here; also aware of the fact that many opinions of other states uphold the expressions found in these opinions. After all it is but a scheme, in our judgment, for the purpose of distributing prizes by chance.
The motion for rehearing is overruled.
Overruled. *Page 560