219 S.W.2d 539 | Tex. App. | 1949
This is an appeal from grant of a permanent injunction restraining appellant , from using certain described premises “as a' place where persons resort for the purpose of gambling and as a place for gaming, keeping and exhibiting games prohibited by the laws of the State of Texas, and as a place for the purpose of keeping, exhibiting and playing the game commonly known as ‘Bridgo.’ ” Suit was maintained by the District Attorney under Arts. 4664, 4666 and 4667, Vernon’s Ann.Civ.Sts., which declare to be a common, nuisance the use of “any hotel, rooming house or boarding house, country club, garage, rent car stand or other place * * * where persons resort for the purpose of gambling * * * ” (Art. 4664) ; or “for gaming or keeping or exhibiting games prohibited by law. * * * ” (Art. 4667) Defendant below denied all charges of law violation, or maintenance of nuisance, claiming that his operation on the premises was a perfectly 'legal game or contest.
The cause was tried principally on agreed facts disclosing that the “Dallas Bridgo Center” was located on a business block in East Dallas, with Entertainment Enterprises Corporation, a Texas corporation, as lessee, and defendant Hoffman Vice President; that the game there played was open to the public with accommodations 'for approximately 120 persons at one time. Here we quote from agreed stipulations which describe the equipment and conduct of appellant’s game, “Bridgo”: “There is first a game of skill in which each participant attempts to line colored balls in the holes in a box consisting of thirty-six (36) squares. This box is four feet from the counter at which participants sit and is surrounded on each side by a glass panel. To play the game, the participants must buy at least two blue balls at the price of ten cents each. The participants throw these balls into the above described thirty-six-hole box. He is then given all the red balls he wants free of charge. The object of the game is to have a row of six balls horizontally, vertically or diagonally. Each row must contain one blue ball and the winner of the game is the person or persons who form a row of six balls using the smallest number of red balls. It is possible for several people to win each game. The prize is token redeemable in free plays of the game. After each of the games as above described and after a two or three minute break, there is a game played in the manner in which the gime known as Bingo is played. The defendant refers to this as a relaxation game to distinguish it from the ball game known as the skill game. The cards for this game are kept in a rack in front of each participant and each participant takes any number of cards he wishes. The numbers on the cards are covered with markers by the participants as the numbers are called out by the management following their chance drawing from a container. The first person to cover the numbers on a card in a vertical, horizontal, or diagonal line is the winner and receives a certificate redeemable in United States money. There is no charge for participating in this game and the participants may play this game even if they have not played the above described ball game. The only game for which the management requires payment of money from the participants is the ball pitching game. Before the defendant began operating this game, he submitted through his attorney a description of the game to the District Attorney’s office and asked for the Attorney General’s opinion concerning the legality of such a game. The District Attorney did not submit this request to the Attorney
It was also agreed that a good many witnesses testified to playing the above mentioned relaxation game in appellant’s place of business at various times without payment of money and without having played the “game of skill.” These witnesses included a captain of Texas Rangers who was checking on the game and a member of the staff of the Dallas County District Attorney; further that from time to time, prizes on the relaxation game were substantial sums of money, the amount of $400 having been offered as the prize on at least one occasion. We might add to the above statement that when a winner of said relaxation game is declared, the procedure was to start another skill game, the cycle continuing until close of business for the day.
It is implicit in the foregoing set of facts that the round of entertainment offered to each customer consists of two phases, (1) a so-called game of skill for which a-money charge is made, with free games to the successful participants; (2) a game of relaxation known as Bingo with no charge for entry but with a winner’s prize ranging from a minimum of $15 to a maximum of $4.00; and it is this method of business or use of equipment that appellee assails as violative of Arts. 619, 654, our Penal Code, providing (619) : “If any person shall directly, or as agent or employe for another, or through any -agent or agents, keep or exhibit for the purpose of gaming, any policy game, any gaming table, bank, wheel or device of any name or description whatever, or any table, bank, wheel or device for the purpose of gaming which has no name, or any slot machine, any pigeon hole table, any jenny-lind table, or table of, any kind whatsoever, regardless of the name or whether named or not, he shall be confined in the penitentiary not less than two nor more than four years regardless of whether any of the above mentioned games, tables, banks, wheels, devices or slot machines :are licensed by law or not. Any such table, bank, wheel, machine or device shall be considered as used for gaming, if money or anything of value is bet thereon.” Art. 654 (Lottery) : “If any person shall establish a lottery or dispose of any estate,
Appellant first argues that his Bridgo game (the ball-throwing feature) is admittedly and in fact one of skill and such as the statutes against gaming were never intended to cover; as opposed to pure games of chance with associated gambling or betting. We will consider the ball-tossing device as a game of skill in accordance with stipulations, though the question of whether it was predominantly of such character, if open, would appear debatable. However, the point need not be argued. Our courts have construed Arts. 619, 621 and 625 as drawing no distinction between games of chance and games of skill, but as condemning all games upon which money or “anything of value” is staked or waged on the outcome; taking the view, in short, that playing a game, whether of skill or chance, for money or '“other thing of value” constitutes gambling or gaming. Adams v. Antonio, Tex.Civ.App., 88 S.W.2d 503, (writ refused); Callison v. State, Tex.Civ.App., 172 S.W.2d 772. “This betting on games is the evil our law seeks to eradicate.” Stearnes v. State, 21 Tex. 692, 693. Texas courts further hold that amusement is a “thing of value” and that free games won on marble machines at least are within condemnation of the statutes. State v. Langford, Tex.Civ.App., 144 S.W.2d 448; Hightower v. State, Tex. Civ.App., 156 S.W.2d 327 (writ refused). There being no material difference between the instant ball-tossing device and the operation of a marble board, except that here the balls are manually propelled, we do not think appellant is in any better position to claim immunity than that occupied by keepers in the Langford and Hightower appeals where the devices were held unlawful.
However, we may be in error in giving the described amusement a classification along with automatic or mechanical devices, for the element of gaming incident thereto is negligible; and, standing alone, it is not made the center of appellee’s attack. It is these games taken together that the State characterizes as a lottery, possessing the usual ingredients of a money pi'ize, chance and consideration; to which appellant strongly argues the total absence of consideration, in that his Bingo contest is free. But we are not foreclosed by the owner’s mere assertion of no consideration (which may be furnished directly -or in-diredtly by the participant). “Courts will inquire, not into the name, but the game, to determine whether it is * * * prohibited * * Smith v. State, 17 Tex. 191. Hence for the consideration necessary to a lottery scheme, we must look to the facts of the particular case and its reasonably deducible inferences.
Our agreed stipulations do not disclose the source of the money awards following this game of relaxation (Bingo); but defendant was occupying leased premises, undoubtedly carrying on a business for profit. We may properly assume, therefore, that his outlay in money prizes, consequent upon Bingo, was entirely dependent upon intake at the box office, i. e., admissions of participants in the skill game, and bearing a relationship to these admission fees in some fixed ratio or percentage. Similarly we may properly infer, from the substantial sums of money paid out on relaxation games, with the allure of chance awards to one and all, that defendant’s amusement center was not lacking in a steady and substantial flow of customers. Here it may be observed that the -cards for Bingo were kept in a rack in front of participants; two of whom testified in supplemental statement of facts that some inducement to their attendance at defendant’s establishment was the chance to win a cash prize. However strenuously ap - pellant may contend that his exhibition of chance for a money prize was free, we con-
In Society Theatre v. City of Seattle, 118 Wash. 258, 203 P. 21, 22, a leading case, the plan of an association of merchants, manufacturers and growers was to advertise products of their members by furnishing merchandise and supplies to be given away; making arrangements with certain moving picture theaters to permit distribution thereof by means of numbered tickets among patrons after their admission to the theater in the usual manner. Following a regular performance the association would conduct a drawing by lot, those holding fortunate tickets receiving prizes. The theaters had nothing to do with giving out the tickets for prizes or their distribution, making no extra charge for admission. The result constituted a lottery, said the court, holding: “It needs no argument to show that the second and third elements appear in the business conducted by respondent. But it is argued that the element of consideration does not appear because the patrons of the theaters pay no additional consideration for entrance thereto, and pay nothing whatever for the tickets which may entitle them to prizes. But while the patrons may not pay, and the respondents may not receive any direct consideration, there is an indirect consideration paid and received. The fact that prizes of more or less value are to be distributed will attract persons to the theaters who would not otherwise attend. In this manner those obtaining prizes pay consideration for them, and the theaters reap a direct financial benefit.”
In short, we find in appellant’s modus operandi just another practice in a new setting of the old bank night principle or method of business, heretofore held illegal by both Courts of Criminal Appeals and our Supreme Court. Cole v. State, 133 Tex.Cr.R. 548, 112 S.W.2d 725; City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695.
The parties here are well familiar with “Bank Night” as recently conducted, and its methods need not be described. In Cole’s appeal, supra, the theater proprietor was found guilty of violating the lottery statute in -his manner of operation. On rehearing, and with reference to the “indirect consideration” necessary to a lottery, the court, through Judge Graves, said [133 Tex.Cr.R. 548, 112 S.W.2d 731]: “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 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.”
In City of Wink v. Griffith Amusement Co., supra [129 Tex. 40, 100 S.W.2d 701], the Supreme Court held: “Defendant in error’s ‘Bank Night’ plan was obviously an evasion of the lottery laws by the avoidance of a direct charge for prize chances (all other elements of a lottery being present), but, nevertheless, having the object of enriching the defendant in error by the ‘chance’ of gain just as much as though a direct charge had been made therefor, manifestly an attempted ‘avoidance’ of the lottery statute ‘by artifice’ in accordance with the generally accepted definition of ‘evasion’ ”; and further that “If it be granted that the plan of defendant in error’s ‘Bank Night’ was not a lottery because a charge was not made for the registration entitling one to participate in the drawing (and this is the only distinction which is here or could be made), then it clearly comes within the condemnatory
We think the principle inherent in above cases is likewise applicable to appellant’s business, viewed as a whole and in its practical operation. Our Constitutional provision against lotteries “or other evasions involving the lottery principle” (Sec. 47, Art. 3) is strongly worded, the same or similar language appearing in all preceding Constitutions; being uniformly construed “with a view to remedying the mischief intended to be prevented, and to' suppress all evasions for the continuance of the mischief.” 54 C.J.S., Lotteries, §, 19, p. 862. “Where the question presented is one of enforcing criminal responsibility, or of refusing to aid in a transaction alleged to be within the statutory prohibition, the courts will ordinarily construe liberally the provisions relating to lotteries so as to include all schemes which appeal to the gambling propensities of men.” State ex rel. Beck v. Fox Kansas Theatre Co. 144 Kan. 687, 62 P.2d 929, 933, 109 A.L.R. 698.
Manís ingenuity has been fertile in the invention of schemes and devices for the purpose of satisfying at least the letter of these enactments (Const. sec. 47, Art. 3; Art. 654, Penal Code). But considering the liberal construction heretofore accorded to them, and, in slight paraphrase of the oft-quoted statement from Long v. State, 74 Md. 565, 22 A. 4, 12 L.R.A. 425, 28 Am. St.Rep. 268, we. venture the following assertion : That we believe it almost impossible for the most ingenious and subtle mind to devise any scheme or plan, short of a gratuitous distribution of his own property, that will not be held by the courts of this State as in violation of the foregoing statute.
Contrary to the contention of appellant, the instant proceedings for injunctive relief is authorized under Arts. 4664, 4666 and 4667, Vernon’s Ann.Civ.Sts. The latter article has been definitely made applicable to a lottery. See State v. Robb & Rowley United, Tex.Civ.App., 118 S.W.2d
In harmony with the conclusions above reached, all points of error are overruled and judgment of the trial court is affirmed.