Opinion
No. 32805.
June 7, 1937.
1. INDICTMENT AND INFORMATION.
In construing a criminal statute, if its language can be applied to both innocent and guilty purposes, indictment and proof should go beyond mere language of statute.
2. INDICTMENT AND INFORMATION. Statutes.
The language of a criminal statute must be construed in light of purposes for which statute was enacted and proof must correspond thereto and establish intent of offense.
3. GAMING.
In prosecution for unlawfully operating a slot machine, instructing that to convict jury must believe beyond reasonable doubt that some person other than accused played or operated machine was not error, since it was not unlawful, per se, for owner of slot machine to keep it and operate it for amusement and not as a gambling device (Code 1930, section 821).
4. GAMING.
In prosecution for unlawfully operating a slot machine, admission of testimony of payment of privilege tax was not error, notwithstanding evidence as to privilege tax being paid is not ordinarily admissible, where payment was a stipulated fact and court instructed jury that payment did not justify operation of slot machine as a gambling device (Code 1930, section 821).
5. CRIMINAL LAW.
On appeal from judgment acquitting defendant of offense, only legal questions which were decided adversely to state can be considered.
APPEAL from the circuit court of Sunflower county. HON. S.F. DAVIS, Judge.
W.D. Conn, Jr., Assistant Attorney General, for the state.
In the recent case of Atkins v. State, 178 Miss. 804, there was an affirmance of a conviction for the operation of a slot machine. In that case the court held that it was no defense that the operator of such a slot machine had procured a privilege license to operate it. Consequently, if such privilege tax is no defense, the evidence thereof is incompetent and irrelevant, so far as the guilt or innocence of the person charged with operating such a machine is concerned.
This prosecution was under the provisions of Section 821 of the Mississippi Code of 1930, which makes it unlawful for any person to operate a slot machine which does not indicate in advance what the purchaser is to receive on each operation of the machine. In the statement of facts he also agreed that he, the said defendant, then and there knowingly operated the said machine. In the face of this, the court gave an instruction at the request of the defendant that before the jury could convict him it would have to believe from the evidence beyond a reasonable doubt, not only that he, himself, did operate the machine, but that some other person or persons must have operated it also.
From the plain language of the statute, the indictment and the agreed statement of facts this instruction extended the requirements of the statute and was, in effect, on this record, a peremptory instruction to find the defendant not guilty. Under the statute it is not necessary for the state to show that any person or persons operated it, particularly is this true when the defendant, himself, agreed that he had wilfully and knowingly operated it.
Neill Townsend, of Indianola, for appellee.
On introduction of agreed statement of facts, the State objected to that part which set out that the defendant had paid a privilege tax in the sum of $260 for the operation of said slot machine, on the grounds that it was incompetent, irrelevant, and immaterial, which objection was overruled by the court, but the first and fourth instruction given the State properly instructed the jury that the payment of a privilege tax on a slot machine, wilfully and unlawfully, or knowingly and unlawfully operated, was no defense in the case. In other words, by instruction the lower court in substance sustained the objection to the evidence covered by the State's objection, and under our conception of the law both instructions were properly given by the court.
No error was committed by the court in the giving of the following instruction: "The court instructs the jury that in order to convict the defendant, you must believe from the evidence beyond a reasonable doubt that some person or persons other than the defendant played or operated the machine in question."
A slot machine is not per se a gambling device since it may be used or played upon for an innocent purpose, and the court 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; 38 A.L.R. 73.
We submit that in this case the indictment charges no offense, and the proof as evidenced by the agreed statement of facts established no violation of the law, and that the instruction complained of by appellant was properly given. It certainly was not the purpose of the statute to make criminal the keeping and operating of a slot machine operated only by the owner, and that is what this court would have to say if they hold that the instruction complained of by the State is not the law.
Rawls v. State, 70 Miss. 739.
Argued orally by W.D. Conn, Jr., for the State, and by S.D. Neill, for appellee.
George Stigler, the appellee, was indicted in the circuit court of Sunflower county for unlawfully operating a slot machine, the indictment charging that "George Stigler late of the county aforesaid, on the 15th day of March, A.D. 1937, with force and arms, in the county aforesaid and within the jurisdiction of court, unlawfully and wilfully did then and there operate a slot machine, the said slot machine not being an automatic vending machine which indicated in advance what the purchaser is to receive on each operation of the machine, against the peace and dignity of the State of Mississippi."
There was a demurrer filed to this indictment, which demurrer was overruled and the case went to trial on an agreed statement of facts, resulting in the acquittal of appellee, hence there is no question on this appeal as to the sufficiency of the indictment. This agreed statement of facts reads as follows: "It is agreed between attorneys for the state and for the defendant that the following are all of the facts in this case; George Stigler, the defendant, on the 15th day of March, 1937, in Sunflower County, Mississippi, owned and knowingly had in his possession a certain slot machine, in the City Drug Store, in the Town of Drew, said machine being numbered 355843, and on which the said Stigler had paid the state privilege tax for operating the same to the amount of $260.00; that said slot machine was not an automatic vending machine which indicated in advance what the player or purchaser would receive on each operation of the machine; that said Stigler then and there knowingly operated the said machine. The above facts are agreed to be true, but same are to be subject to objections which may be made to their competency, relevancy or materiality."
On the introduction of this agreed statement of facts, the State objected to that part setting out that the appellee had paid a privilege tax for the operation of said slot machine, which objection was overruled by the court. Then the court gave for the appellee the following instruction: "The court instructs the jury that in order to convict the defendant, you must believe from the evidence, beyond a reasonable doubt, that some person or persons other than the defendant played or operated the machine in question."
The court gave for the State the following instruction: "The court instructs the jury for the State that it is no defense to the crime of the unlawful operation of a slot machine, which is not an automatic vending machine which indicates in advance what the purchaser is to receive on each operation of the machine, that the operator or any person has paid a privilege tax to the state, or any other body, for the operation of said machine."
From a reading of this agreed statement of facts it will be seen that it does not stipulate that the machine was operated as a gambling device or for profit, consequently we must assume that it was not so operated. It is manifest that such a machine could be operated for amusement alone. Section 821, Code 1930, denounces machines which do not indicate in advance what the player is to receive, but does not denounce the mere possession of such machines. In construing a statute, the rule is that, if its language can be applied to both innocent and guilty purposes, the indictment and proof should go beyond the mere language of the statute. In Rawls v. State, 70 Miss. 739, 12 So. 584, it was held that where "The language . . . is broader than its purpose" in certain cases, the "indictment must charge in apt language the unlawful act," citing Sullivan v. State, 67 Miss. 346, 7 So. 275.
Under this decision, and under the general law, the language of statutes must be construed in the light of the purpose for which the statute was enacted, and the proof must correspond thereto, and establish the intent of the offense.
It was not unlawful, per se, for the owner of this slot machine to keep it and operate it for amusement and not as a gambling device. Consequently, there was no error in granting to the appellee the instruction complained of by the State.
While evidence as to a privilege tax being paid is not ordinarily admissible, still, in this case it was a stipulated fact, and the court instructed the jury that such payment did not justify the operation of the slot machine as a gambling device.
We find no error, and, as the appellee was, by the lower court, acquitted, only legal questions can be considered on this appeal which were decided adversely to the State.
The judgment of the court below will, therefore, be affirmed.
Affirmed.