16 S.E.2d 769 | Ga. Ct. App. | 1941
The evidence was sufficient to authorize the jury to find against the plea of autrefois convict, but was insufficient to support a verdict of guilty of the offense charged. The court erred in overruling the motion for new trial.
The evidence showed that the officers seized the machine described in the indictment on which the defendant was tried in the instant case on the same date, in the same room, from the defendant's place of business, as they did the machine involved in the issue of autrefois convict. The only difference in the two was the allegation "Jungle" and "Derby Horse Racing" machine, respectively. The evidence showed that the officers visited the place of business of the defendant and seized the "Jungle" and "Derby" machines and one other similar machine known as "Bally." Each machine was operated by depositing a nickle therein and obtaining five metal balls. These balls were then, by the operator, redeposited in the machine which was operated by electric current. A release lever was manipulated in an endeavor to cause the ball to strike certain obstacles which in turn caused certain numbers, multiples of 1000, to appear. The sum of these numbers constituted the total score made by the five balls so purchased and played. There was a degree of skill involved in the manipulation. The officer played each of the machines. *844 He received no prize of any kind, saw no one else receive any prize, and did not know that the machines would automatically pay off in coins or other things of value, although one of them, he could not recall which, was constructed with two-coin compartments, and a place for coins to come out, and the officer did not know that it was operated so that coins would come out. The officers stated they were gambling machines. The defendant in his statement contended that one purchased the balls and played to see who could make the highest score, for amusement only, and that there was no payoff at all.
The evidence failed to show that the machines would automatically or otherwise pay a prize, or that a prize was being given in connection with their operation. To constitute gaming under the statute three elements are essential: (1) a consideration, (2) a chance, and (3) a prize. Barker v.State,
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.