
    BERRY v. STATE.
    (No. 10858.)
    Court of Criminal Appeals of Texas.
    April 27, 1927.
    1. Lotteries <&wkey;30 — Refusal of instruction that permitting slot machines to remain idle on premises was not violation of law held error.
    In prosecution for establishing lottery, refusal of defendant’s instruction that, if from evidence jury believed he received slot machines without intention to use them for gaming, but intended to ascertain whether use thereof violated the law, and while so informing himself did not permit their use for gaming, he would not be guilty, held error.
    2. Lotteries <&wkey;3 — Keeping of worthless slot machines in house does not amount to a “lottery,” unless operation thereof would result in game of chance.
    The mere keeping of idle and worthless slot machines in a house does not amount to establishing a “lottery,” unless they are shown to be in such condition as that their operation would result in a game of chance.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lottery.]
    Appeal from El Paso County Court at Law; J. M. Dea ver, Judge.
    B. B. Berry was convicted of establishing lottery, and he appeals.
    Reversed and remanded.
    Chas. Owen, of El Paso, and Herman Lewkowitz, of Phoenix, Ariz., for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in the county court at law of El Paso county for establishing a lottery; punishment, a fine of $150.

Two police officers went to appellant’s hotel, and found in a room two slot machines. They testified that a woman told them the machines would play and pay off. One of the officers tested one of the machines by dropping a nickel in the slot and pulling the lever. He got nothing. About this time appellant appeared on the scene from somewhere about the premises. The officers arrested him.

Appellant testified in his own behalf that the machines had been put into his place a short time before by one Orr. He said Orr told him they were gum vending machines, and that they were out of order; that they would not operate until some spring or other part was fixed. Appellant testified that he told Orr the machines could not operate in his place until he found out whether keeping them was a violation of the law. He further swore that he intended to find out if keeping such machines was against the law. He had recently come to this state from North Carolina. He further said that he had not given his consent to any one to operate the machines, and that, as far as he knew, they could not be operated. He said he and his wife had played them, but had gotten nothing out of them. The officers had testified that there was money on the inside of the machines, but whether it was money that had been put in there by persons attempting to play the machines or from some other source they did not attempt to state. This ist the substance of the testimony.

In this condition of the record appellant asked the following special charge:

“Gentlemen of the jury, you are instructed at the request of the defendant that, if you believe from the evidence that the defendant, B. B. Berry, received said slot machines from one Orr, but, at the time of receiving same, he did not intend to use them for gaming purposes, but intended to ascertain whether or not the use of said machines was a violation of the law, and while so informing himself permitted said machines to remain upon the premises, but did not permit the same to_ be used for the purposes of gaming, then he would not be guilty under the law of this state, and, if you so find from the evidence, or have a reasonable doubt thereof, you should acquit the defendant.”

The refusal of this charge is deemed error. The mere fact of permitting the machines to remain in hisi house without their operation by any one would not constitute the establishment of a lottery. We have some doubt as to the sufficiency of the testimony in this case. Appellant testified the machines were out of order, and would not operate, by which we understand him to mean that they would not pay off or give returns for the dropping of coins into them. If the machines were out of order, and would not pay off or allot, • we cannot understand how the keeping of them would make out a case for the establishment of a lottery. It was held in, Prendergast v. State, 41 Tex. Cr. R. 358, 57 S. W. 850, that a slot machine was a lottery, but by this it must be. -understood to mean a slot machine which was capable of being operated as a lottery.

The officers did not testify to seeing the machines operate. The mere dropping of a coin into the slot and the pulling of the lever, without some testimony as to further consequences, would not amount to operation. Appellant Said the machines, according to his information, were out of order, and . would not 'operate. He and his wife tried to play them, but nothing came out. The machines had been taken in charge by the officers and carried away from appellant’s place. No witness testified that at any time said machines were operated. Unless there was some testimony showing them to be in such condition as that their operation would result in a game of chance, we would be of opinion that the mere keeping of the idle and worthless machines in a house would not amount to a lottery.

The judgment is reversed, and the cause remanded. 
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