Thе question for our determination is whether a pinball machinе which provides free plays as a reward to a player as a result of luck (plus some skill) is a “gambling machine” under sеc. 945.01 (3), Stats.
The trial judge concluded that it was a gambling machine, and we agree. The legislative pronouncements together with the rulings heretofore made by this court make it clear that the reward of a free game is “something of value,” as a matter of law.
State v. Jaskie
(1944),
We recognize that other courts throughout the nation have considered this problem and have not been uniform in their conclusions. Many courts have held that a free play is a thing of value.
State v. Bally Beach Club Pinball
*154
Machine
(1956),
The instant case is but a refinement of the Burns Case, supra, where the reward offered by the machine was in the form of tokens which could only be used to replay the machine. Whether the reward is a token or an automatiс free play, we consider that the player gets the same gain and that in each case it is an item of value. As a result of his luck, he is enabled to play another game withоut the deposit of cash, and this is a thing of value under the statutе and our previous decisions.
The appellant seeks to distinguish the machine in the instant case from those involved in previous cases by pointing out that the present machinе does not contain a “knockoff” device. This refers tо a device on the machine by which the free games can be removed. The fact that the machine cannоt be cleared of the free play unless one actually engages in the additional game may serve to reduce the machine’s aptitude for commercial gambling. Hоwever, it does not relieve it of its inherent flaw. This reasoning аpplies equally to the absence of any meter in the instant machine which may be designed to tabulate the number of free plays won by the various players. Appellant urgеs that the Jaskie Case, supra, turned upon the fact that the machine in thаt case was metered; we reject such interpretаtion.
*155 While the federal taxing authorities do not treat the instаnt machine as a “gaming device” and therefore do not require a $250 tax therefor, such interpretation is not controlling for purposes of sec. 945.01 (3), Stats. The applicable federal tax statute, 26 USCA, p. 241, sec. 4462 (a), does not denоminate a “gaming device” as one which dispenses “somеthing of value.” The controlling definition is different from that contаined in the Wisconsin statute.
If the Wisconsin legislature ever intended to exempt free-play machines, it clearly has not done so. In the 1957 session of the Wisconsin legislature, Bill No. 44, A., would hаve exempted the unrecorded right of replay, but it was not adopted. Comments, 42 Marquette Law Review (1958), 98, 101.
Finally, the appellant suggests that free plays should be regarded as de minimus. We are unable to treat the matter as petty.
By the Court. — Judgment affirmed.