DocketNumber： O-6887
Judges： Grover Sellers
Filed Date： 7/2/1945
Status： Precedential
Modified Date： 2/18/2017
Honorable W. J, Townsend County Attorney Angclina County Lufkln. Texas Dear Sk: Opinion No. O-6007 Re: Does the scheme for the dls- positlon of an automobile by chance where tickets are aold for $1.00 each, constitute a lottery? Ia a lottery aLgame that the State 1s authorixed to suppress by. injunction under Article 4667, Revised Civil Statutes? Your reqwet for an opinion relative to conductlng a lottery haa been received and car,efully considered by this department. We quote portlona of your letter as followa: ‘I begleave to advise that a group of clttzena of this county. in an effort to raim rome money for a benevolent purpose, are seeking to dispose of an lutomobU8 by means of a lottery ln aelllng tickets for a drawlng. Thr lucky number is to receive the automo- bile. The tickete for the drawtng sell for approxtmately $1.00 each, which ticket so purchased entitles the holder thereof one chance at said drawing or lottery. I have advised these promoters of this scheme that the ram. Ls unlawful, but apparently they do not agree with my conatructioa of the law. Hence, I am nubmltting the matter to you asking your oplnlon governlug the facta. “* * * ‘Please give me your optnion on these questlona: ._ .- Honorable W. J. Townsend, Page 2, O-6887 ‘1. Is the scheme for the disposition of an automobile by chance, where tickets are sold for $1.00 a piece, entitling the holder thereof of a chance for the possession of the automobile at a drawing to be held later a lottery? ‘2. Are those conducting the lottery, as well as those selling tickets therefor, criminally Hable for conducting a lot- kry 7 ‘3. In addition to the criminal prosecution of those conduct- ing a~lottery. csn an injunction sutt be lawfully brought to enjoin the conducttng of said lottery, if any? ‘4. Can a suit be brought dtrect for the confiscation of the automobtle as can be done for the confiscation of fixtures used in a gambling hall? In other words, can a confiscation suit be brought for the confiscation of the automobile which is being used for an unlawful purpose, to-wit: the dtspositlon of the same by chance or lottery 7” Section 47 of Article III of the Constitution of Texas reads as fol- lows: ‘The Legislature shall pass laws prohibi.ting the eskblish- ment of lotteries and gift enterprises ln this State, as well as the sale of ttckets In lotkries, gift enterprises or other evasions ln- volvlng the lottery principle, establlshed or existing, in other, states.” Under the above mandate the Legislature passed Article 654, Penal Code of the State of Texas, providing that: “If any person shall establish a lottery or dispose of any estate, real or pers,onal, by lottery, he shall be fined not less than One Hundred ($100) Dollars nor more than One Thousand ($1.000) Dollars; or if any psrson shall sell, offer for sale or keep for sale any tickets or part tickets in any lottery, he shall be fined not less than Ten ($lO).Dollars nor more than Fifty ($50) Dollars.” . . ‘_ Honorable W. J. Townsend, Page 3, O-6887 The Court of Crlmlnal Appeals held in the case of Cole vs. State,112 S.W.2d 725
, that such a scheme as you describe in your letter is in violattoa of the article quokd above. In this case Judge Hawkins had this to say and we quote from his opinion as follows: -There is not now, nor ever has been, an attempt in this state to define by sktuk what constitutes a lottery. The term is defined by the statutes of only a few of the states. Corpus Juris, vol. 38, p. 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 sktuk. we must resort to the meaning given the krm by popular usage as determined by the vartoua courts. When that is done, lt is clear that three things must concur to establish a thing as a lottery: (a) A prize or prizes; (b) the award or distribu- tion of the prise or prizes by chance; (c) the payment etther directly or tndtrectly by the partktpants of a consideration for the right or privilege of participating. Texas Jur ., vol. 28, p. 409. § 2, deduces from pur own cases the rule stated, and Lt 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. Skte.42 Tex. 580
; Grant v. State, 54 Tax. Cr. R. 403,112 S.W. 1068
; 21 L.R.A., N. S.. 876,130 Am. St. Rep. 897
, 16 Ann. Css. 844; Prendcrgsst v. State, 41 Tex. Cr. R. 358,57 S.W. 850
; Holeman v. Skte, 2 Tex. App. 610, 28 Am. Rep. 439, and other Texas cases cikd in Texas Jur.. suprs. The same rule demanding the presence of the three elements named will be found stated Ln 17 Ruling Case Law, p. 1222, and 38 Corpus Juris, p. 286, with Lnnumer- able supporting cases clkd under the text in each of said volumes.” Also see Smith vs. State,127 S.W.2d 297
; City of Wink vs. Grifftth Amusement Go.,1002 S.W.2d 695
; and Robb & Rowley United v. State,127 S.W.2d 221
. The scheme or plan, as described in your latter, apparently is in violation of Article 654, Penal Code of Texas, in that all three of the ele- ments necessary to constltuk s lottery are present. Each person psrtici- eating ln the schema is required to purchase a ticket for the drawing. The tickets are priced st one dollar ($1.00) each. The purchase of a ticket 1s a consldsrstlon for s person to participate in the drawing. All persons . . .- Honorable W. J. Townsend, Page 4, O-6887 holding tickets will not partictpak I.n the prize since the prize will be awarded to the holder of the ticket that corresponds to the one that ts drawn and this fact establishes the element of chance. The automobile is the prize that is awarded the holder of the lucky ticket. As to whether or not those conductl.ng the lottery are equally guilty tn the commission of the offense as well as those selling the lot- tery tickets, the following articles of the Pen,al Code of Texas are quoted: “Article 65. All persons are principals who are guilty of acting together in the commisston of an offense.” ‘Artkle 66. When sn offense is actually committed by one or more persons, but others are present. and knowing the unlawful Ln- tent, aid by sets or encourage by words or gestures, those actually engaged In the commission of the unltiwful act, or who. not being sc- tually present, keep watch so as to prevent the inkrruptton of those engagCd in commlttlng the offense, such persons so atding, encoursg- ing or.keeplag watch are prtnctpal offenders.” ‘Article 67. All persons who shall engage in procurtng aid, arms or means of sny kind to assist In the commission of sn offense, while others are executing the u.nlawful act, and all persons who en- deavor at the time of the commissLon of the offense to secure the safety or concealment of the offenders are principals.” ‘Article 69. Any person who advises or sprees to the com- mission of sn offense and who is present when the same is commlt- ted is a principal whether he aided or not In the tlle&l~act.” In view of the above statutes, there can be no doubt as to the guilt of the persons conducting the lottery. The persons responsible for the scheme, purchsslng the automobUe, having the tickets printed, distrtbutlng the tickets to other persons for sale and actually conducting the drawing are princtpal offenders in the commlsslon of the offense as well as persons selling the tickets, and are amenable to prosecutton for the violation of Article 654, Penal Code of Texas. From Texas JurLsprudence, Vol. 12, page 334, we quota: .If parties have a common intent or previously formed design to commit an offense and act together in the commission of the same, Honorable W. J. Townsend, Page 5. O-6887 they are and must be principals, and equally so whether the act of the coprincipal brings him under one or the other of the various methods specified in the code whereby one may become a principal. A person who commits an offense while acting as agent for another, and with knowledge of the latter’s cri,minal intent, or who is present when an offense is committed and assists in its commission, is a principal. Also where* or more persons combi.ne or conspire to commit a crime, all who are acting together and doing their parts in the execu- tion of the common design at the time when the offense is committed are principals, whether they are actually present at the time and place of its commission or not; and all continue to be principals as long as any portion of the object of the common design remains incomplete, or, in other words, until the full purpose and object of the conspiracy is consummated and accomplished.” We now pass to your third question which is, “Can an injunction suit be lawfully brought to enjoin the conducting of said lottery, if any?” This identical question was brought before the court in the cases of State vs. Robb & Rowley United,118 S.W.2d 917
, and Robb & Rowley United, Inc., et al vs. Skk, 127 S.~W. 2d 221. In both of these cases it was held that lotteries are a species of gaming and nuisances which the State is authorized to suppress by injunction under Art. 4667, Revised Civil Statutes. In dealing with your fourth question, we turn to Article 636, Penal Code of Texas, which we quote: ‘It shall be the duty of every sheriff, or other peace officer by virtue of the warrant authorized by this chapter to seize and take into his possession all gaming tables, devices and other equipments or paraphernalia of gambling houses, the existence of which has come to his knowledge and to immediately file with the justice of the peace, county judge, or district judge, a wri.tten list of the property seized designating the place where same was seized, and the owner of same, or the person from whom p,ossession was taken. Thereupon said jus- tice of the peace, county or district judge shall note the same upon his docket and ksue, or cause the clerk of the court to issue a written notice to the owner or person in whose possession the articles seized were found, commandlng him to appear at a designated time, not earlier than five days from the service of such notice, and show cake why such articles should not be destroyed. If personal service cannot be had upon , Honorable W. J. Townsend, Page 6, O-61387 the person to whom sams Is directed, a copy of said notice shall be posted for not less than five days, either upon the court house door of the county where the proceedings are begun or upon the building or premises from which the property seized was taken.” We are of the opinion that the automobile, which is the prize to be awarded, is not property subject to confiscation under the provisions of the above article. In support of our contention, you are referred to Hightower v. State,156 S.W.2d 327
; Davis v. State,165 S.W.2d 757
; and Collison v. State,146 S.W.2d 460
. , Trusting the foregoing answers your inquiries. we are Yours very truly ATTORNEY GENERAL OF TEXAS Louts w. Woosley Assistant ATTORNEY GE‘NERAL LWW:IJ APPROVED OPINION