State v. One "Jack and Jill" PinballState v. One "Jack and Jill" Pinball
- Reporters:
- ,
- Before:
- Vandeventer
[2] The machine had previously been seized under a search warrant and was then in the hands of the sheriff. The facts relative to it were included in a stipulation, which greatly condensed was that it was the ordinary and well known pinball machine, in which one inserts a five cent coin and, by manipulating a plunger, propels balls over the surface of an inclined table which strike certain pins, etc., on the table. A score is electrically registered on an illuminated board at the rear end of the machine. If this score totals a certain amount, the player is entitled to one or more free games. The machine gave no tokens, slugs, tickets, money, prizes, merchandise or anything of that character. It merely permitted the player to play one or more games without inserting another coin in the slot. It was also stipulated that to some extent, the score might be influenced by the manipulations of the player but we think the stipulation shows that the score obtained was predominately due to chance and not to skill. Under those circumstances, we agree with the learned trial court in finding that the element of chance existed, and that the results depended more largely on chance than skill. Hofferman v. Simmons, 177 Misc. 962, 32 N.Y.S.2d 244; 38 C.J.S. Gaming, § 1, Page 35.
[3] The case was tried and the court held that it was a gambling device and ordered its destruction. From this order and decree, the owner of “Jack and Jill“, has appealed.
[4] The sole question before us is: In the operation of this machine, does the fact that the player may play a free game or games upon the attainment of a certain score make it a gambling device under our statutes and subject it to confiscation? So far as we have been able to ascertain, this question has never been decided by an appellate court in Missouri.
[5] Gambling or the keeping of a gambling device was not a crime at common law. Stubbs v. State, Miss., 40 So.2d 256. People v. Jerman, 29 Cal.2d 189, 173 P.2d 805; People on inf. Roberts v. Reille, City Ct., 50 N.Y.S.2d 196. Hartford Accident and Indem. Co. v. Benevento, 133 N.J.L. 315, 44 A.2d 97; U.S. Dixon, D.C., 25 Fed.Cas., page 872, No. 14, 970. Reinmiller v. State, 93 Fla. 462, 111 So. 633; Monterey Club v. Superior Court, etc., 48 Cal.App.2d 131, 119 P.2d 349.
[6] Therefore, if it is a criminal offense to operate a gambling device, or to gamble, it must be by virtue of some statute.
[7] This action seeks to condemn and destroy this machine on the theory that it is such as is prohibited by law.
[8] Statutes for the seizure and destruction of property are highly penal, must be strictly construed against the state and in favor of the owner, they cannot be enlarged or extended by intendment but such action must be fully justified by the statute. A statute that permits the seizure and
[9] Crimes are not to be built up by courts with the aid of inference, implication and strained interpretation. People v. Zimbrolt, 35 Cal.App.Supp.2d 745, 91 P.2d 252.
[10] Therefore, before this property should be destroyed, the evidence must clearly show that it is a “gaming table or gambling device prohibited by law.”
[11] If the above statute applies, it is clearly apparent that the device must be adapted, devised and designed “for the purpose of playing any game of chance for money or property * * *.” The Assistant Prosecuting Attorney must have had this statute in mind when he drew his petition because he asserts that the machine “is a gambling device, adapted, designed and intended for the purpose of playing thereon or therewith a game of chance for money or property.”
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[13] This statute does not define a gambling device but makes it a crime to permit one to be set up or used in a house, etc.
[14] No other sections have been cited and an independent search reveals no other relating to the subject of gambling devices. The device must be such as is condemned by some statute. If it is such as is described in
[15] Respondent has cited several Arkansas and other cases, which we shall presently discuss but first, we should ascertain what the Arkansas statute provides relative to gambling devices.
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[18] In Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W.2d 161, 162, the Supreme Court of Arkansas in a case involving a machine, where after depositing a nickel, the player received a package of mints, together with a varying number of slugs, from one to twenty, the slugs later to be used for the purpose of playing the game but for which no mints were received, held that under the Statutes of Arkansas this was a gambling device. It quoted parts of
[19] Furthermore, the decision states that the Statutes of Arkansas define gambling “as the betting of any money or any valuable thing on any game of hazard or skill.”
[20] Our statutes do not contain the phrases “valuable thing“, “thing of value” or any “representative of any thing that is esteemed of value.”
[21] In Steed v. State, 189 Ark. 389, 72 S.W.2d 542, construing the same statute, the court held that a similar machine was a game of chance. As we read the Arkansas Statutes, if the device permits the playing of a game of chance, then it is unnecessary to show that it was designed as one upon which can be won money or property or any valuable thing. The element of chance is in attaining the score. The Steed case cited Howell v. State, 184 Ark. 109, 40 S.W.2d 782, and that case merely follows the Rankin case and held that when one played the machine and by chance was given additional plays, that those plays were “representative of any thing that is esteemed of value.” It does not state whether the owner, the player or the law is to decide what is “esteemed of value.”
[22] In Stanley v. State, 194 Ark. 483, 107 S.W.2d 532, the Supreme Court of Arkansas following the cases above referred to, merely held that the machine was a gambling device because it permitted the playing of a game of chance. Those cases are not in point with the case before us because of the dissimilarity of the statutes of Missouri and Arkansas.
[23] Respondent has also cited Alexander v. Martin, 192 S.C. 176, 6 S.E.2d 20.
[24] The South Carolina statute also states that slot machines are unlawful, “which are so constructed as to [not] give a certain uniform and fair return value for each coin deposited therein, and in which there is no element of chance.” Of course, a pinball machine in which a five cent coin is inserted and which, if the score exceeds the minimum, gives other free games, does have the element of chance and does not give a certain and uniform return.
[25] In the Alexander case, supra, construing the above statute, the Supreme Court stated that the fluctuation of the score was an element or contingency dependent upon chance and that the machine so kept was a violation of the Statute. The court also held that the winning of free games upon attainment of a particular score pertained to a game of chance whether it was played for amusement or for money. But, as in the Arkansas cases cited above, the Supreme Court of South Carolina was considering statutes entirely different to those in Missouri.
[26] The District Court of the Western District of South Carolina, in Holliday v. Governor of State of S. C., 78 F.Supp. 918, construing the South Carolina statute, held that a coin-operated, “nonpayout” pinball machine with the free play feature is a gambling device as condemned by that statute.
[27] The court in Steely v. Commonwealth, 291 Ky. 554, 154 S.W.2d 977, was discussing a statute that made it a criminal offense to operate a “machine or contrivance used in betting whereby money or other thing may be won or lost; * * *”
[28] The Supreme Court of New Mexico, in Giomi v. Chase, 47 N.M. 22, 132 P.2d 715, held that under a statute making it unlawful to operate a gambling device “for money or anything of value, in the state of New Mexico“,
[29] The Supreme Court of North Dakota, in Middlemas v. Strutz, Attorney General, 71 N.D. 186, 299 N.W. 589, held that under the lottery statute of North Dakota,
[30] In Broaddus v. State, 141 Tex.Cr.R. 512, 150 S.W.2d 247, the Court of Criminal Appeals of Texas, in construing a statute that made it a criminal offense to keep for the purpose of gaming any device or any slot machine, regardless of the name or whether named or not, held that the right to continue operation of the machine for amusement made it a gambling device because the statute said it was one “if money or any thing of value is bet thereon.”
[31] In People v. Gravenhorst, Sp.Sess., 32 N.Y.S.2d 760, 774, the defendant was charged with possessing a slot machine in violation of
[32] It would hardly be expected that this court would hold that a “thing” defined as above, is property. It would be going too far to say that a thing imagined as having existence was property within the statutory definition in Missouri.
[33] A careful reading of the above-cited cases will show that many of them contain dictum and some of them contain philosophical dissertations on the evils of gambling and the development and encouragement of the gambling instinct. See Savoy Vending Co. v. Valentine, 178 Misc. 1, 33 N.Y.S.2d 324. We, too, could philosophize on these subjects, but the policy of legislative enactments is not for the courts. It is for the legislature. We should not “judicially legislate” so as to broaden the plain letter of the statute.
[34] By considering our statutes, we can narrow the issues in this case. It must be borne in mind that we are considering that which comes out of the gambling device and not that which goes in.
[35] In Gayer v. Whelan, District Attorney, Cal. District Court of Appeals, 59 Cal.App. 2d 255, 138 P.2d 763, 768, the court held that free games given by a pinball machine operated by chance was not a violation of a statute that forbade possession and control of a mechanical device that paid off “money, representative or articles of value, checks, or tokens, redeemable in, or exchangeable for money or any other thing of value, * * *.”
[36] The following cases from other jurisdictions construe statutory provisions practically identical with ours and hold that a free game or games are not property. These cases are interesting and to the point but an analysis of each would needlessly lengthen this opinion. Washington Coin Machine Ass‘n v. Callahan, 79 U.S.App.D.C. 41, 142 F.2d 97. Chicago Patent Corp. v. Genco, Inc., 7 Cir., 124 F.2d 725. Davies v. Mills Novelty Co., 8 Cir., 70 F.2d 424. Commonwealth v. A Certain Gambling Device, 151 Pa.Super. 346, 30 A.2d 357.
[37] In Pennsylvania where the statutes use the words, “money or other property of value” and “money or other valuable thing”
[38] See also: Mills Novelty Co. v. Farrell, 2 Cir., 64 F.2d 476, 478, where it was said: “* * * The amusement feature of the machine does not make the machine a gambling device. It arouses interest and perhaps attracts customers to the machine in much the same way as advertising would, but this is lawful.”
[39] In State v. Betti, 42 A.2d 640, 641, 23 N.J.Misc. 169, the court held that free games did not constitute a “valuable thing” under a statute making it a criminal offense to keep in one‘s place of business a gambling device in the nature of a slot machine, “which may be used for the playing of money or other valuable thing, * * *.”
[40] In Commonwealth v. Kling, 140 Pa. Super. 68, 13 A.2d 104, 105, it was held that free games or the lure to play for them on a pinball machine was not “a ‘thing’ of value.”
[41] Many other cases have been read but nearly all of them construe a statute different in phraseology from ours.
[42] Gambling, as judicially defined, has three necessary elements, (1) consideration or risk, (2) chance and (3) reward or prize. But the legislature has required the third element, when referable to a gambling device, to be “money or property.” Does the player get property for his nickel? We think not. It is argued that he gets amusement. The vacuous mind that may momentarily be brightened by finding entertainment and amusement in watching a metal ball meander aimlessly over the surface of an inclined table and finally score by dropping from sight into an aperture therein, would be equally entertained by watching a certain species of scarabaeoid beetle aimlessly roll his putrid ball across the ground and into a hole where eventually it becomes sustenance for itself and young. Would not the entertainment and amusement in each instance be the same though five cents is paid to pull the plunger in the one and in the latter, the propulsion is by the beetle and its accomplishments are not emblazoned upon an electrically lighted scoreboard. The privilege of watching either would certainly not be property, under
[43] If a free game is property or a thing of value, what kind of value has it? Certainly it has no educational or intellectual value. How could watching a rolling ball bounce from peg to pin and then disappear, enrich the mind or broaden one‘s intellect? After its propulsion by the plunger, gravity moves the balls but that law of physics was discovered by Sir Isaac Newton and became common knowledge more than two centuries ago. Such information is not acquired by inserting a nickel in a pinball machine. From the beetle, one might learn some new fact relating to entomology but nothing from “Jack and Jill.” If there
[44] A free game has no physical value such as a game of golf, which by its pleasurable exercise, coupled with fresh air and sunshine develops the muscles, invigorates the body and creates a feeling of physical well being, thereby improving health and prolonging life. No such benefits appear here. To be allowed to do a useless thing free does not make that privilege property or “a ‘thing’ of value” because one has previously paid for doing another such useless thing. There is a vast difference between cost and value. Permission to use a useless device is not property or “a ‘thing’ of value,” though the device used cost money to construct.
[45] Does the player receive anything of financial or economic value? Rather isn‘t this so-called recreation and amusement the antithesis of value? If one‘s time is worth anything, it is a loss instead of gain, a waste instead of reward. Hope of reward or gain, above the amount risked, is the lodestone of gambling. The fact that one has paid five cents for it does not conclusively fix that, or any other sum, as its value or any value at all.
[46] It may be argued that opportunity to play brings customers to the place of business where such devices are located. Assuming that it does, that “pay off” does not go to the one who risks his nickel and takes the chance. If the only benefit that arises from the keeping of the device goes to the keeper by reason of other potential business transactions of the player, it could hardly be said that the third element of gambling was present. Rather, the first element of gambling is augmented.
[47] The legislature may decide that such a device should be suppressed because it is useless, causes a waste of valuable time and tends to encourage and develop the gambling instinct in the young, an argument that has been advanced, dicta, in many decisions. But until legislation to that effect is enacted, we must construe the statutes as we find them.
[48] The judgment should be reversed and the machine, so seized, returned to claimant. It is so ordered.
[49] BLAIR and McDOWELL, JJ.