Opinion
No. 19368
Decided March 16, 1926.
Gambling — Exhibiting gaming device for gain — Section 13066, General Code — Evidence insufficient that merchandise slot machine operated as gambling device — Intent to keep machine as gambling device by redeeming checks.
CERTIFIED by the Court of Appeals of Hamilton county.
This case comes into this court on certificate of conflict with the decision of the Court of Appeals of Fairfield county in the case of Snyder v. Swope, Director of Safety, 23 Ohio Law Rep., 361.
The action arose in the justice of the peace court of Springfield township, Hamilton county, Ohio, the defendant in error being charged with the violation of Section 13066, General Code, which provides in substance:
"Whoever keeps or exhibits for gain or to win or gain money or other property, a gambling table * * * or a gambling device or machine * * * shall be fined not less than fifty dollars nor more than five hundred dollars."
The affidavit charged that: "On or about the 3d day of April, 1925, at the county of Hamilton, and state of Ohio aforesaid, one Henry Krauss did unlawfully keep and exhibit for gain a certain gaming device commonly known as a slot machine, contrary to the form of the statute in such case made and provided," etc.
The device which the state claims constituted a gambling device is what is commonly known as a merchandise slot machine. On the face of this machine is a copyright plate, which reads as follows:
"Silent Salesman."Deposit a 5 cent coin and receive a 5 cent package of candy mints. With this purchase you will receive _____ coupons which, if not received in violation of the restrictions below, will be redeemable in trade only at the value of 5 cents each.
"Restrictions."Operating this machine with anything but a U.S. 5 cent coin or making two or more consecutive purchases herein positively prohibited.
"Copyright 1923, by John Morris."For every 5-cent piece inserted in the machine a 5-cent package of mints is received. Restrictions limit each person to playing the machine one time. There is a small indicator on the face of the machine, which, before a person plays, indicates by numerals whether or not the person playing will receive anything in addition to the five-cent package of mints. There is a small glass window under the word "receive" and before the word "coupon." Prior to the operation of the machine the word "No," or a numeral, anywhere from 2 to 20, will appear in the window or indicator. If the machine will not produce anything more than the mints, the word "No." appears; if it will produce anything more than the mints, the numeral, from 2 to 20, indicating the amount of trade checks, appears. The checks so received from the machine are redeemable in trade only, at the value of 5 cents each, in the store in which the machine is being exhibited. It is claimed that under the restrictions these coupons, or trade checks, cannot be used in the operation of the machine, and only those checks received on the first nickel inserted by a person will be redeemed by the proprietor; in other words, there is to be no consecutive playing of the machine, and if a person plays the machine the second time, and wins trade checks, the proprietor will refuse to honor them. The machine is operated by placing a 5-cent United States coin in a slot and pulling a lever. The operator will, in every instance, receive a package of mints equal in size and quality to the ordinary mints sold at drug stores for an equal price. In addition thereto the player may receive as many metal coupons as the numeral in the glass window indicates he will receive, before the nickel is inserted or the lever pulled, unless the word "No" appears, in which event he will receive no coupons, but will receive the package of mints. If coupons are received on any consecutive operation of the machine, they are valueless, cannot be redeemed in trade, nor replayed in the machine. If they were replayed in the machine, and the operator should receive additional coupons, according to the claim of defendant they could not be redeemed in trade, and would have no value at all. The operator does not receive a package of mints on a replay of the coupons. A 5-cent United States coin is the only means of playing the machine, so as to secure in exchange a package of mints or coupons redeemable in trade.
Krauss entered a plea of not guilty before the magistrate, a jury was waived, and upon trial the defendant in error was convicted as charged. Error was prosecuted to the court of common pleas of Hamilton county, which court reversed the judgment of the justice of the peace. The state prosecuted error to the Court of Appeals, in which court the judgment of the common pleas court was affirmed, and it is now sought to reverse this judgment in this court.
Mr. Charles S. Bell, prosecuting attorney, and Mr. Edward Strasser, for plaintiff in error.
Messrs. Miller Elston and Messrs. E.H. W.B. Turner, for defendant in error.
The state introduced but a single witness, Beckman, who testified that he played the machine in question three consecutive times, inserting a 5-cent piece each time; that he received mints on each play, and that, in addition, on the second play, he received checks. These checks were not presented by the witness for redemption in merchandise in the store, but were retained as he says for evidence.
The defendant testifies that he did not cash the checks secured by the state's witness, Beckman, and that on another occasion, on the same day, he refused to cash checks won by consecutive play by one Lind, who testifies to the same effect on behalf of the defendant. The defendant further testified that he did not permit the violation of the restrictions on the plate as to consecutive playing.
On this state of the record was there a case made of keeping a gaming device for gain in violation of Section 13066, General Code?
In the note to the case of State v. Certain Gambling Instruments and Apparatus of Paul (R.I.), 128 A. 12, the editors of 38 A. L. R. are quoted as saying, at page 73:
"A slot machine, it has been said, is not per se a gambling device, since it may be used or played upon for an innocent purpose, and the courts cannot, therefore, take judicial notice that every slot machine is a gambling device, as the use to which it is put must determine its character. 12 R. C. L., 730. * * *
"It is generally held that a slot vending machine, which, in return for a coin deposited therein, dispenses merchandise of the value of such coin, accompanied at occasional and uncertain intervals by a varying amount of money, trade checks, or coupons, is a gambling device. * * *
"Nor is such a machine rendered innocuous by the fact that it indicates in advance of each deposit exactly what it will dispense; it being considered that, in such instances, the player gambles, not on the immediate return for the coin he deposits, but on the hope or chance that the indicator will show a profit on his next play."
The following cases are cited in support of the text: Cagle v. State, 18 Ala. App. 553, 93 So. 206; Sheetz v. State, 156 Ark. 255, 245 S.E. 815; Brockett v. State, 33 Ga. App. 57, 125 S.E. 513; Ferguson v. State, 178 Ind. 568, 99 N.E. 806, 42 L.R.A., (N.S.), 720, Ann. Cas., 1915C, 172, and notes; Welch v. Commonwealth, 179 Ky. 125, 200 S.W. 371, L.R.A., 1918C, 651; Tonahill v. Molony, Supt. of Police, 156 La. 753, 101 So. 130; State v. Googin, 117 Me. 102, 102 A. 970; City of Moberly v. Deskin, 169 Mo. App., 672, 155 S.W. 842; Pure Mint Co. v. La Barre, 96 N.J. Eq. 186, 125 A. 105; Zaft v. Milton, Prosecutor, 96 N.J. Eq. 576, 126 A. 29; People ex rel. Verchereau v. Jenkins, Chief of Police, 153 App. Div. 512, 138 N. Y. S., 449; State v. Certain Gambling Instruments and Apparatus of Paul, (R.I.), 128 A. 12, 38 A. L. R., 71; Griste v. Burch, 112 S.C. 369, 99 S.E. 703; State v. McTeer, 129 Tenn. 535, 167 S.W. 121.
The cases of Rex v. Stubbs, 9 Alberta L. R., 26, and Rex v. Langlois, 23 Canadian Crim. Cases, 43, are cited as being contra. However, Rex v. Gerasse, 26 Canadian Crim. Cases, 246; Rex v. O'Meara, 25 Canadian Crim. Cases, 16; Bareham v. The King, 26 Canadian Crim. Cases, 211, hold such machines to be gambling devices. See also 27 C. J., 989; Territory v. Jones, 14 N.M. 579, 20 L.R.A., (N.S.), 239, 20 Ann. Cas., 128; Muller v. Wm. F. Stoecker Cigar Co., 89 Neb. 438, 131 N.W. 923, 34 L.R.A., (N.S.), 573.
This record fails to show that the checks received as a result of the consecutive play by the state's witness were redeemed or even offered for redemption in trade at the store of the defendant. Until something was received, or to be received in the future, as a result of the operating of the so-called gambling device we fail to see how there could be a violation of the statute. As far as the evidence goes, the machine operated as a merchandise vending device simply, and the features of the machine which might make the same a gaming device were not utilized by the state's witness, nor shown by the evidence adduced.
If some gain or profit, or the right thereto, had been shown, a different question might have been presented, but the evidence stopped short of showing that the machine was operated as a means of securing something for nothing.
The machine was not used, as is said in City of Moberly v. Deskin, 169 Mo. App., 672, 155 S.W. 842, as "a contrivance which was intended to allure the player into continuing to play in the hope that next time the indicator would point to trade checks and thus bring him something for nothing."
The record is completely silent as to any gain to the player as a result of his operation of the machine consecutively or otherwise. For each 5 cents played in the machine he received a package of mints each ostensibly of a commercial value of 5 cents. No profit or gain, present or future, by the hazard or element of chance of the machine, is shown to have accrued to the player. He received just what he paid for, a so-called 5-cent package of mints. The checks he received the player made no effort to turn into profit, and the defendant testifies that he did not redeem, with merchandise, or otherwise, cheeks received on consecutive play, or, in other words, that he did not permit violation of the terms of the restriction on the plate.
Unless the record shows a violation of the letter and spirit of the statute, it follows that no conviction thereunder can be sustained. In State v. Meyers, 56 Ohio St. 340, 47 N.E. 138, it was held:
"(1) A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute."
The case of Snyder v. Swope, Director of Safety, 23 Ohio Law Reporter, 361, the case decided by the Court of Appeals of Fairfield county, with which this case is certified as being in conflict, was a civil action for an injunction restraining the safety director of the city of Lancaster from interfering with the operation of certain candy vending machines.
In the Snyder case the conclusion of the Court of Appeals was based upon the principles of equity applicable to the granting of injunctive relief in a civil action, whereas in the case at bar the Court of Appeals of Hamilton county was dealing with a criminal case, and the paramount question before it was whether or not the record disclosed sufficient proof of each and every element going to make up the offense charged in the affidavit to sustain a conviction by evidence beyond the existence of a reasonable doubt.
We think the records before the two courts of appeals were so essentially different, and the principles of law applicable thereto of such dissimilar character, that the respective conclusions reached do not constitute a conflict of opinion. This case is a criminal one and requires the application of the well-known principles applicable to criminal cases.
We have examined the authorities cited by counsel for the state and for the defendant. Without discussing them at length, it is sufficient to say that most of them refer to machines which do not disclose the result of operation until after the play is made. Others permit consecutive plays; but until a record is presented which shows consecutive plays, or consecutive alternate play, or some other manner of play, as a result of which premiums, checks, or coupons are received, which secure to the player or players something for nothing as a result of his play, we fail to see how there can be a violation of the statute; nor is the case of State v. Certain Gambling Instruments and Apparatus of Paul, supra, especially in point, for the reason that in that case there was a proceeding in rem to have a certain "nickel-in-the-slot" machine declared forfeited to the state in accordance with the laws of Rhode Island.
It is to be noted that in that case Rathbun, J., says: "However, the question of intent is unimportant, as this is a proceeding, not against the owner, but against the machine."
In the case at bar the intent of the defendant to keep the machine as a gaming device for gain is of the essence of the offense, which might be shown under certain conditions by redeeming the checks won by the player, thus bringing something of value to the player for nothing, which might appeal to the gambling instinct.
In the light of the meager record presented in this case, we are unable to find that the state showed beyond the existence of a reasonable doubt the essential elements going to make up the offense charged, and we are, therefore, led to the same conclusion reached by the common pleas court and the Court of Appeals, to wit, that the record does not show sufficient to sustain the judgment of the justice of the peace.
Our conclusion is that the judgment of the Court of Appeals in affirming the judgment of the common pleas court must be affirmed.
Judgment affirmed.
MATTHIAS, DAY, KINKADE and ROBINSON, JJ., concur.
MARSHALL, C.J., and JONES, J., not participating.