397 Pa. 430 | Pa. | 1959
Dissenting Opinion
Seventeen pinball machines were seized by the Pennsylvania State Police at various establishments in Fayette County on June 20, 1957, including the American Legion Post No. 51. The Quarter Sessions Court sustained the position of the Commonwealth that these machines were gambling devices per se under the provisions of §60 of the Act of March 31, 1860, P. L. 382, 18 PS §1445. There was no testimony offered to prove that actual gambling took place on or in connection with these machines,
Section 60, supra, provides: “It shall and may be lawful for any sheriff ... to seize upon, secure and remove any device or machine of any kind, character or description whatsoever, used and employed for the purposes of unlawful gambling
It is Hornbook law that a Penal Statute must be strictly construed: Act of June 24, 1939, P. L. 872, 18 PS §5104; Act of May 28, 1937, P. L. 1019, Art. IV, §58, 48 PS §558; Commonwealth ex rel. Varronne v. Cunningham, 365 Pa. 68, 73 A. 2d 705; Commonwealth v. Morgan, 278 Pa. 395, 123 A. 337; Commonwealth ex rel. Keiffer v. Ceraul, 182 Pa. Superior Ct. 511, 128 A. 2d 187. Admittedly there is no evidence that these machines were used or employed for the purpose of unlawful gambling. Moreover, in my judgment, if these machines can be used either for pleasure or for unlawful gambling purposes, that is not sufficient to make them illegal per se, or to justify their confiscation and destruction by the Commonwealth. The evidence and the aforesaid authorities furnish a complete and decisive determination — adverse to the Commonwealth— of the question involved in the instant case.
In view of the fact that the argument and the various Court opinions have taken such a wide range, I shall discuss several of the points relied upon.
What is unlawful gambling, and what is a gambling device or machine within the meaning of §60? It may be helpful to also consider §604
A few examples will illustrate my differences with the majority and additional reasons for my dissent.
A backgammon board can be used for pleasure or for gambling
"What disturbs me is that if we hold that these particular pinball machines are illegal per se, very many other tables, devices, machines and clubhouses, which can be used for recreation and pleasure, but are frequently used for some gambling, would have to be ruled illegal per se under The Penal Code of 1939.
For these reasons I dissent.
20 other machines which were actually used for gambling purposes at the time of their seizure, were validly confiscated by the police.
Italics throughout, ours.
Section 605 of the Act of June 24, 1939, P. D. 872 provides: “Whoever sets up or establishes . . . any game or device of address, or hazard, at which money or other valuable thing may or shall be played for, or slaked or betted upon ... is guilty of a misdemean-
See also other examples given in the illuminating dissenting opinion of Mr. Justice Mttsmanno.
This does not include special golf tournaments following a Calcutta pool, or other auction.
Dissenting Opinion
Dissenting Opinion by
I am opposed to gambling — intellectually, morally, and religiously. Moreover, the law of the Commonweal Hi prohibits gambling. Thus, no observation in this Opinion is to be interpreted as anything less than an unreserved disapprobation of gambling, which has nothing to recommend it but a wild desire to obtain lucre without labor, finance without fatigue, and quid without quo.
However, the condemnation of gambling, or any other evil for that matter, should not be so loosely applied that it strikes down perfectly legitimate and innocuous pastimes. Many bridge players play for money
Yet, according to the argument advanced by the Commonwealth in this case, bridge, golf and the World Series could be enjoined. Counsel for the Commonwealth, in the oral presentation of his case, said that any device which is employed in a gambling operation may be confiscated and destroyed by the government. From the bench I put to him the proposition: “Suppose that bystanders bet on the number of Cadillacs which would pass a certain street corner at a certain time. Would you say that in such a situation, the Cadillacs would be amenable to legal forfeiture?” Counsel unabashedly replied that if the Cadillacs were used in the gambling operation, they would become illegal devices and therefore subject to condemnation and destruction. But how would the Cadillac-destruction, under those circumstances, differ from the maceration of playing cards, the ploughing under of golf links, and the razing of baseball stadia?
The pinball machines involved in this litigation could be gambling devices, and, if manufactured, sold, and operated for the sole purpose of unlawful gaming, would indubitably fall beneath the smashing hammer of gambling laws, but it is not enough to say that merely because, like the hypothetical Cadillacs, they may be employed for gambling, they should be reduced to scrap iron and tin.
The evidence in the case before us merely shows that it icould be possible to use the 17 seized pinball machines for gambling. In the entire printed record of 500 pages there does not appear the slightest evidence to show that they were actually used for gambling.
In Commonwealth v. Kaiser, 80 Pa. Superior Ct. 26, the Superior Court said: “When the nature of the machine is shown to be such as fits them solely for an unlawful purpose, they become in the language of some of the courts of other states ‘outlaws.’ ”
Generally speaking, are pinball machines fitted so that they may be used solely for an unlawful purpose? The answer is an obvious negative. Pinball machines can be found in railroad stations, airport terminals, and amusement parks where they are manifestly played for amusement and pastime alone. The very expert called by the Commonwealth in this case testified that
This same Commonwealth expert testified, contrary to the theory advanced by the Commonwealth, that skill may be developed in playing pinball machines: “Q. Have yon watched those machines being played? A. Yes, I have. Q. Have you seen a difference in the skills of various players? A. Yes, they differ. Q. How many times, Professor, would yon say you have played pinball machines? A. I wouldn’t have any idea, sir. Q. One hundred times? A. Maybe five hundred times.”
The Majority has adopted the Opinion of the Superior Court in this case as its own, so that, therefore, I will refer to it as the Majority Opinion. The Majority Opinion affirms the judgment of the lower Court, ordering the destruction of 17 pinball machines, on the basis that they are gambling devices per se, but it fails to specify how and why they are such devices. Without intending any disrespect, I would say that much of the Majority Opinion reads as if it might be a technical description of a highly intricate complex electronic space-traveling rocket. It speaks of parallel circuits, reflex circuit, voltage, circuit-paths, reflex unit, three cams, random action, cyclic pattern, score unit discs, electronic devices, spotting disc and an electric brain! After using this kind of language, the Majority admits, almost apologetically, that “Only one at home in the highly specialized field of electronics here in
If the Majority does not understand what it is writing, how can it expect police officers throughout the State to be guided by its decision? A judicial decision should be a searchlight before it becomes a guillotine.
Although the proceedings in this case determine the fate of only 17 machines, the decision will be used throughout Pennsylvania as a death warrant for thousands of other machines, whose value, on a conservative estimate, could easily surpass five million dollars.
The Act of June 24, 1939, P. L. 872, 18 P.S. 4605, provides: “Whoever sets up or establishes or causes to be set up or established any game or device of address or hazard, at which money or other valuable thing may or shall be played for, or staked or betted upon ... is guilty of a misdemeanor.”
The player of a pinball machine does not and cannot collect money from the machine. The Commonwealth expert admitted that in his examination of the machines in custody he did not find anything which would give to the player “any money, coins or tokens, or any other objects that are redeemable in either cash or merchandise.” What, then, can the player win? lie can win the right to play extra games without paying for them. But such an authorization or privilege is not a “valuable thing” within the meaning of the statute.
But, it is argued by the Commonwealth, the machines are equipped with certain “features” which, of themselves, make the machines gambling devices. One of those accused “features” is the so-called knock-down button, the manipulation of which cancels free games won by the player up to that time. The Superior Court has said that such a contrivance is not enough to illegalize the machine: “We hold that the mere fact that these machines are so constructed that it is possible to cancel some of the Tree games’ without playing them is not, by itself, sufficient evidence to support a finding that they were used for the purpose of unlawful gaming.” (Wigton’s Return, supra, p. 346)
Although the Commonwealth sees in the knock-down button sinister implications, it cannot be denied that the erasing button can serve perfectly lawful functions. If a player, for any reason, leaves the machines without playing all the games to which he is entitled, the proprietor, by means of the knock-down button, clears the machine so that the succeeding player may start afresh.
I believe that Wigton’s Return controls in this appeal. The Majority attempts to distinguish Wigton from the present ease, but the attempted contrasting,
The Majority says: “What a player could win [in the Wigton case] by playing that type of single coin pinball machine, after the deposit of a coin, was the right to play additional free games and nothing more.” That is all the player can win in the machines which are the subject of this lawsuit, namely, the right to play additional free games; nothing more. The fact that after the games have been played, the score may be used as a basis for the payment of money does not make the machine illegal any more than the exchange of money between players at the end of a golf game metamorphoses golf into illegality. Because gamblers bet on a horse is no excuse for shooting the horse. A horse can be used for purposes other than circling a race track to the accompaniment of cheering and groaning money-betting winners and losers.
The grievous fault in the Majority Opinion is that it fails to differentiate between machines which are evil per se and those which may become evil by use. It is to be remembered that these proceedings are in rem. The machines themselves are the subject of the litigation; they are the ones that stand to be annihilated if they are proved to be gambling devices per se. A gambling machine per se is one which, without human intervention, deprives the player of money, or valuable thing, as the result of mere chance, or, worse yet, as the result of mechanical planning, works odds against him.
The Commonwealth detects gambling in the meters with which the pinball machines are equipped. There is no doubt that these meters can be utilized for the purpose of determining whether a player should receive money from the proprietor or lessee, but they may also be bookkeeping devices to keep the record straight as to whether the player is paying for his games. Since the machine is, in its nature, a competitive one, (the player seeking to win a score which will entitle him to free games, and the machine itself contesting to prevent such free games), a scorekeeper, mechanical or human, is inevitable. When the proprietor of the machine comes to collect the money in the coin box he must know how many games have been played in order to make certain that the machine has not been tampered with. Thus, a meter or a number of meters, are indispensable in ascertaining how many games have been paid for, and how many became gratuitous through the skill of the player.
After this portentuous pronouncement the Majority Opinion moves on to something else. It does not say why the multiple-coin feature makes the pinball machine a gambling device yer se. There is nothing inherently wrong about multiple coins. One deposits multiple coins in a pay telephone, one inserts multiple coins in a phonograph-playing machine, one presses multiple coins into candy and cigarette-vending machines — all legally. Thus, the phrase “multiple-coin” does not conjure up anything sinister, anything hydra-headed and Gorgonian which of itself calls for decapitation. The statement by the Majority on multiple-coins is not judicial, but legislative. But, when the law of Pennsylvania is to categorically condemn multiple-coin devices, that law must be pronounced by the Legislature, not by the Courts.
The fact that the multiple-coin machines may be used for gambling purposes cannot ipso facto make them unlawful gaming. As Judge Kenwortiiey said: “It may be that the proprietors of the machines involved in this case will use them for unlawful gaming. But even if we were fearful of that development we have no power to make a broad, sweeping, prophylactic rule; the legislature has given us no such authority.” (Wigton’s Return, supra, p. 345) (Emphasis supplied)
The Majority finds no amusement in pinball machines. Neither do I, but I would not condemn them for that reason. There are many games which absorb the attention of mankind which leave me quite indifferent. Pool playing to me is the pedestrianism of a caged bear, card playing is a bore, quoits dull, tug-of-war infantile, ping pong an agitated checkers game.
The Majority says: “There can be no reward in terms of amusement from the mere insertion of coins into an unresponsive machine.”
This is about as pla-titudinously dreary a statement as one would not want to encounter in a judicial opinion. Of course, there is no amusement from the “mere insertion of coins into an unresponsive machine.” There is no reward either from dropping coins in a telephone box but there can be a rewarding experience in the conversation which follows. There is no reward in paying money at a box office, but there is a rewarding experience in the theatrical performance which is seen.
The Majority, in signing the death warrant of the 17 pinball machines, says: “They [the pinball machines] are craftily designed, artfully constructed, and ingeniously deceptive in their appeal, and in our opinion clearly are gambling devices per se.” This imparts no enlightenment whatsoever to the pinball machine owner as to what is wrong about the machine. To say that machines are craftily designed and artfully constructed means nothing, so far as deciding the issues in this lawsuit is concerned. Television sets are craftily designed and artfully constructed. Then, to say that the pinball machines are “ingeniously deceptive” is about as informative to the public as to say that sleight-
In summing up I would say the following. A pinball machine in itself is not a gambling device. That much must be admitted by the Commonwealth. A normal pinball machine is as innocuous as bingo which, in some ways, it attempts mechanically to reproduce. Of course, the machine, like any other apparatus, device, game, sport, or diversion, may be turned into a gambling instrument. The person who employs that gambling instrument for gaming may be prosecuted under the State gambling laws. The instrument, however, may not be forfeited and destroyed unless it cannot be used for any purpose other than gambling.
The Majority says that the pinball machines in this litigation are gambling devices but it fails to specify how and why they are gambling devices, which subjects them to execution. The record utterly fails to show that these machines were ever used for gambling.
We thus come to the inevitable conclusion that the Majority has, after a certain amount of technological discussion, arbitrarily condemned them to destruction. I believe that the owners and lessees of similar machines throughout the Commonwealth are entitled to know wherein the machines are illegal and this explanation should be given, in language which will enable them to make such adjustments as will bring the pinball machines (which are intrinsically harmless) into the realm of legality. The proprietors of five million dollars worth of 'private property are entitled at least to this. Because the Opinion of this Court does not do this, I must dissent.
It was later ascertained that the total value of these machines would amount to $17,000.00!
Lead Opinion
Opinion
The order of the Superior Court affirming the order of the court below forfeiting the pinball machines in controversy and directing their destruction is affirmed on the opinion of Judge Hirt, reported at 188 Pa. Superior Ct. 480.
