the game is exhibited,or the instrumentsby which the result is developed, for the purposeof evasion,will not changethe characterof the game. It is difficultto imagineany speciesof table or bank, or gamingdevice resemblingeither,that is kept for gaming,that would not be includedin the clausesof the Code."
It mattersnot how the table or bank is constructedor operated if it is kept or exhibitedfor gamingpurposes. Doyle v. State, 19 Tex. Cr. R. 410. Whether or not the table was designedfor gamingpurposes is immaterial--it is the game or characterof play on it that determines its status. Estes v. State, 10 T. 300; Chappellv. State, 27 Tex. Cr. R. 310, 11 s. w. 411.
From your letter,we conceivethe marble machinementioned by you to be similerto the ones condemnedby the relativelyrecent cases of Adams v. Antonio, (Civ.App.) 88 S. W. (2d) 503, Robertsv. Gossett,(Civ.App.) 88 S. W. (2d) 507, and Houstonv. Fox, (Civ.App.) 93 S. W. (2d) 781. However,in each of the three cases mentioned,it HonorableLeo Presnell,page 3 (C-2032)
appearsthe machineswere of the "pay off" variety. Such a machine has been held to be no less a gamblingdevice if the operatorpays the winner ratherthen the machine itself.
The Courtshave recognizedtwo kinds of gaming devices,as shownby the followingquotationfrom the case of Mills v. Browning, (Civ.App.) 59 S. W. (2d) 219:
"A gaming devicemay be (a) one which is made primarilyend principallyfor &ambling,e. g.,.e roulettewheel, and, this primaryand principalpurposebeing established,no furtherproof of its actual use la required;or (b) it may be 8 devicewhich is useful for serviceto law-abidingsociety,in which event the article itselfmuet be shown to be actuallyused in gamblingto constituteIt condemnable.* * * These definition6are of long standing,end sincetheir announcement,the ingenuityof some types of our cltieenshas devoteditselfto an effortto make the formerwhich would to a judge or jury appear to be the latter, and the law reportsaboundwith the descriptionsof them."
If 8 machineis 8 gamblingdevice per se, it is not essential that the state prove that money or anythingof value wa8 bet upon the Houghtonv. Fox, supra;Carrollv. State,81 9. W. 294; Brogden v?iate, 47 Tex. Cr. R. 121, 80 S.,W. 378. If not such a deviceper se, its use for gamblingmuet be proven. Mills v. Browning,eupra.
It appearsfrom your letterthat the machinecomes within the letter classification, and proof of the machinebeing used for gamblingwill be essentialto render it subjectto seizureby the of- ficersand condemnationin accordancewith the provisionsof Articles 636 to 638, Penal Code, inclusive.
It would also naturallyfollowthat upon such proof 8 prose- cutionwould lie under the provisionsof Article 619, Penal Code, supra; but we also directyour attentionto Articles624, 625, 627, 628 end 630 of the Penal Code. Without copyingthe articleshere, we submit any one of them might be the basis of 8 successfulprosecutionif the facts should disclosegamblingon the marble machine in question. In our opinionsuch procedurewould be preferebleto Art. 654, Penal Code, set out by you, which condemns8 lottery.
If such machine shouldbe determinedto be either8 gaming device per se, or so used as to make it one, under 8 sufficientshowing of facts,en injunctionwould lie to abate the