Summary
In Atkins v. State, 178 Miss. 804, 174 So. 52, this Court held that a slot machine, played for a jackpot, operated by placing 5-cent coins in a slot and pulling a lever for which purchaser could get a piece of gum, or sometimes 10¢ or 15¢, was a "gambling" device under statute which made it unlawful to operate slot machines which did not indicate in advance what purchaser was to receive.
Summary of this case from Morgan, et al. v. State, ex relOpinion
No. 32624.
May 3, 1937.
1. GAMING.
Slot machine, played for a "jackpot," operated by placing 5-cent coin in slot and pulling a lever for which purchaser could get a piece of gum, or sometimes 10 or 15 cents, was a "gambling device" under statute which made it unlawful to operate slot machines which did not indicate in advance what purchaser was to receive (Gen. Loc. and Priv. Laws 1935, Ex. Sess., chap. 20, secs. 204(f), 250; Code 1930, sec. 821).
2. LICENSES.
Issuance of license under statute levying taxes on persons operating slot machines of certain kinds but providing that license should not make lawful, any device or its operation which violated any statute or ordinance held not to create an estoppel against prosecution for crime under statute making it unlawful to operate slot machines which do not indicate in advance what purchaser is to receive (Gen. Loc. and Priv. Laws 1935, Ex. Sess., chap. 20, secs. 204(f), 250; Code 1930, sec. 821).
APPEAL from the circuit court of Lowndes county. HON.W.W. MAGRUDER, Judge.
W.L. Sims, of Columbus, for appellant.
The appellant in this case takes the position that under and by the authority of the State of Mississippi he had a right to operate said slot machine, and that the same was not a gambling device, but the players knew in advance that they would receive value for the money placed in said machine; that he purchased license for the operation through the proper officer of the state, paid the amount required and authorized under the law to be paid, which amount was accepted and used by the state as other privilege licenses are issued; that said privilege licenses were never cancelled by the state and was in full force and effect at the time of said indictment, and surely the state would not be permitted to issue license, accept and use the money therefor, and then be permitted to prosecute the party to whom it had issued license to operate or conduct the business for which said permission had been granted. The appellant contends that under the facts in this case the lower court should have sustained the plea filed in said cause and discharged the defendant; that the state is estopped from prosecuting a man to whom it had lawfully given permission and authority to operate not only a slot machine, but any other business wherein it has issued the proper license and received the benefit from said license.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Section 250, chapter 20 of the Laws of 1935, Extraordinary Session, provides: "The issuance of a privilege license, or the payment of a tax required therefor, shall not make lawful any business, employment transaction, article or device, or the operation thereof, contrary to any statute of this state, or any ordinance of any municipality thereof."
Sub-section (f) of section 204 of chapter 20, Laws of 1935, Extraordinary Session, levies a tax upon each person operating any slot machine "which machine or machines herein taxed does not give to the customer, operator or player, the same value on each and every play or operation of the machine, as follows: . . . for each machine requiring the deposit of a token, coin or coins of 5¢ or more, and less than 10¢ — $100.00."
Section 821 of the Mississippi Code of 1930 provides that: "It shall be unlawful for any person . . . to operate any . . . slot machine, or similar devices . . . Provided, however, that this section shall not apply to automatic vending machines, which indicate in advance what the purchaser is to receive on each operation of the machine."
The sole question that is presented by this appeal is whether the Legislature has the right to collect a privilege tax for carrying on an unlawful business without legalizing such business. This matter has already been settled, so far as this state is concerned, this court having held in State v. Rombach, 112 Miss. 737, 73 So. 731, that a provision such as is incorporated in section 250 of the 1935 Privilege Tax Act was constitutional.
The appellant was tried, convicted, and sentenced to pay a fine on an indictment charging him with unlawfully operating a slot machine in violation of section 821, Code 1930.
In the court below, the appellant pleaded not guilty, and also filed a special plea averring that the sheriff of Lowndes county had issued to him a state privilege license, for which he paid $100, to operate said machine for twelve months, and that the state was thereby estopped from prosecuting him for crime. The state filed a demurrer to this plea, on which no ruling appears in the record, but it is stated in the brief that the court sustained this demurrer.
However, the only evidence offered for the appellant was the license issued by the sheriff, which was excluded by the court. This license was issued, presumably, under the authority of subsection (f) of section 204 of chapter 20, Gen., Loc. and Priv. Laws of Mississippi, Extraordinary Session of 1935, levying taxes upon persons operating slot machines, "which machine or machines herein taxed does not give to the customer, operator, or player, the same value on each and every play, or operation of the machine, as follows: . . . For each machine requiring the deposit of a token, coin or coins of 5¢ or more, and less than 10¢ . . . $100.00." Section 250 of this chapter is as follows: "The issuance of a privilege license, or the payment of a tax required therefor, shall not make lawful any business, employment transaction, article or device, or the operation thereof, contrary to any statute of this state, or any ordinance of any municipality thereof."
The applicable part of section 821, Code 1930, provides that, "It shall be unlawful for any person . . . to operate any . . . slot machine, or similar devices. . . . Provided, however, that this section shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine."
The evidence offered on behalf of the state in this case is that the slot machine operated by the accused did not indicate, in advance, what the purchaser was to receive on its operation, and that it was clearly a gambling instrumentality. The customer placed 5 cents in the slot, pulled the lever, and would, if he saw fit, get a piece of gum, or sometimes 10, or sometimes 15 cents. The customer played for a "jackpot" containing a number of 5-cent pieces inclosed in a glass case, but no customer witness had ever won the "jackpot."
By the evidence in this case, this slot machine was clearly a gambling device condemned by section 821, Code 1930. Crippen v. Mint Sales Co., 139 Miss. 87, 103 So. 503.
The purchaser of a license to operate a slot machine, as in the case at bar, is definitely warned by section 250 of chapter 20, Gen., Loc. Priv. Laws of Mississippi, Extraordinary Session of 1935, that such license will not authorize him to violate this statute, and cannot create, in view of its plain language, an estoppel against prosecution for crime. As analogous, see the case of State ex rel. Melton v. Rombach, 112 Miss. 737, 73 So. 731.
The appellant relies upon the argument that, by virtue of the fact that the privilege license had been issued to him for the operation of the slot machine, the state was estopped from insisting that the operation of the machine was unlawful. This argument consists of about one page of the brief, but is without citation of authority, and does not even cite controlling statutes to the brief of the Attorney-General, and no reply brief has been filed by the appellant. There is no estoppel here. The appellant was guilty.
Affirmed.