Opinion
No. 32334
Decided October 24, 1951.
Gambling — Exhibiting gambling device for gain — Section 13066, General Code — Slot machine designed for gambling — Displayed in accused's place of business — Conviction supported by evidence.
The conviction of a defendant for keeping and exhibiting for gain a certain gambling device commonly known as a slot machine in violation of Section 13066, General Code (73 Ohio Laws, 249), is supported and should be affirmed where the state produced evidence that defendant openly displayed in his place of business frequented by the public a mechanical coin device in working order and containing coins of the kind required for its operation and that the instrument was of such construction as to constitute a gambling device per se, and where no evidence was introduced that the device was on defendant's premises for any purpose other than that for which it was expressly designed.
APPEAL from the Court of Appeals for Paulding county.
The grand jury of Paulding county returned an indictment against Edward D. Shaffer charging that on September 22, 1949, in the county of Paulding, Shaffer did unlawfully keep and exhibit for gain a certain gambling device commonly known as a slot machine.
The indictment was drawn under Section 13066, General Code (73 Ohio Laws, 249), as then in force, which provided:
"Whoever keeps or exhibits for gain or to win or gain money or other property * * * a gambling device or machine * * * shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days, and shall give security in the sum of five hundred dollars for his good behaviour * * *."
A jury was waived and the cause tried to the court. There were but two witnesses, namely, the sheriff and a deputy sheriff of Paulding county who appeared for the prosecution. They testified that they entered defendant's place of business in the village of Antwerp Paulding county; that defendant and several other persons were present; and that on a counter in the establishment, facing the entrance door, was a device which the witnesses termed a "slot machine." It was removed to the county jail where the sheriff and his deputy "played" the machine.
Said the sheriff, "I put two nickels in there to see if it worked; if it was a working machine, and it worked. * * * I believe there was four nickels come out on what was right there, that bell and two cherries."
Both witnesses testified that the device was in the same condition when brought into the courtroom for the trial as it was when removed from the defendant's premises.
The prosecuting attorney proceeded to demonstrate to the court the working of the machine. He received two nickels on the first play and then inserted 19 nickels without securing any return. The machine was then offered and received in evidence as an exhibit.
It is apparent that the device in issue is the conventional type of slot machine designed solely for gambling. The player inserts a nickel in the slot and then pulls a lever on the outside of the instrument. This causes the mechanism on the inside to operate. If the player is "lucky" he takes from an opening in the machine more nickels than he inserts; if he is "unlucky," he loses his money.
The Court of Common Pleas found the defendant guilty and imposed the minimum sentence provided by the statute, with the suspension of the jail sentence upon payment of the fine and costs and the giving of the required security. In addition, it was ordered that the slot machine be destroyed.
An appeal was perfected to the Court of Appeals, which court, two judges concurring and one dissenting, reversed the judgment below, rendered final judgment discharging the defendant, and ordered the seized slot machine returned to the defendant.
In the course of the majority opinion of the Court of Appeals the statement is made: "Neither the possession of such a device nor its exhibition, when such exhibition is not shown to be for the purpose of gain, constitute an offense under the laws of this state."
Allowance of the state's motion to require the Court of Appeals to certify its record places the cause before this court for a decision on its merits.
Mr. Harvey E. Hyman, prosecuting attorney, for appellant.
Mr. J.F. Cavanaugh, for appellee.
A boxlike contrivance with machinery inside and a lever to operate it, which is "played" by dropping coins in a slot and pulling the lever, the person playing it winning or not, depending on the manner in which the inside mechanism performs, and which is designed for the purpose of gambling is "a gambling device or machine" per se and comes within the purview of Section 13066, General Code. See Kraus v. City of Cleveland, 135 Ohio St. 43, 45, 19 N.E.2d 159, 160.
The state's evidence herein shows that the instrument involved was in a conspicuous and accessible location in defendant's place of business; that it was in working order; that it contained a number of coins of the kind required to "play" it; and that its construction and operation were such as to make it purely a gambling device.
Certainly it is a matter of common knowledge that a "nickel-in-the-slot" machine, frequently referred to as a "one-armed bandit," of the type displayed by the defendant in his establishment is not maintained for decoration or as a philanthropic object to which patrons may contribute their means. It is intended to be and is a money making proposition for those to whom the device belongs.
It seems to us that, in a case where the state proves that a machine which is a gambling device per se was being prominently exhibited by defendant in his establishment open to the public, and the defendant produces no evidence that the machine was there for any purpose other than that for which it was expressly designed, the conclusion is justified that the machine was present for the purpose of gambling and for the defendant's pecuniary advantage.
This court is of the opinion that the state produced sufficient evidence to sustain a conviction of the defendant for keeping and exhibiting a gambling machine for gain, and that the Court of Appeals in reversing the judgment of conviction construed the statute and the evidence too strictly against the state.
The instant case is clearly distinguishable from the cases of State v. Krauss, 114 Ohio St. 342, 151 N.E. 183, and In re Estate of Weisenberg, 147 Ohio St. 152, 70 N.E.2d 269. In the former "the machine operated as a merchandise vending device simply," and in the latter the executor of an estate brought a proceeding in the Probate Court to recover from a chief of police and coroner certain gambling contrivances which had been in storage on premises controlled by decedent Weisenberg in his lifetime and which were removed therefrom.
Therefore, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., STEWART, TAFT, MATTHIAS, and HART, JJ., concur.
I regret that I cannot concur. Undoubtedly, a slot machine is a gambling device, but Section 13066, General Code, does not make the mere keeping or exhibiting of such machine an offense. The General Assembly felt it necessary in its last session to enact Section 13066-2, which became effective September 18, 1951. That section provides: "It shall be unlawful to own, possess, or exhibit any gambling device * * *." Prior to September 18, 1951, it was necessary to prove the other element of the offense specified in Section 13066, to wit, that such device was kept or exhibited for gain. The state produced no evidence whatever that the slot machine was ever used by anyone. If it was so used evidence of such use could easily have been procured and produced. The court should not supply, by inference or suspicion, a necessary element which the state may have been able, but failed, to prove and as to which no evidence was presented.