Automatic Age

Issue: 1943 July

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VOLU1 IE 19, NUMBER
JULY - AUGUST, 1943
AUTOMATIC AGE, $1.00 per year. Published bi-monthly by Automatic Age, Inc., 4021 N. Melvina Ave., Chicago. Entered as
second class matter February 20, 1943, at the Post Office at Chicago, 111., under the Act of March 3, 1897. Printed in U.S.A.
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In a sweeping decision recently handed
down, the District Court of Appeal, Fourth
Appellate District has held that free game
pin ball machine games are not gambling
devices under the California Law and are
not subject to confiscation by the district
attorney.
The decision was in a case recently ar­
gued in San Diego. "This case involved
considerable time and effort, and shows
what unification of forces can do when
proper cooperation is given," stated "Cur­
ley" Robinson, director of the Associated
Operators of Los Angeles County, Inc. "We
feel that through our efforts something has
been accomplished that will stabilize our
industry and give it a more solid founda­
tion."
The district attorney of San Diego had
seized 14 pin ball machines at Escondido.
He contended the machines were lottery
and gambling devices, and therefore sub­
ject to seizure and destruction. Claim and
delivery was brought on behalf of the
owner of the machines. The trial court
ordered the machines returned. The dist­
rict attorney appealed, contending that the
machines were gambling devices and lot­
tery devices. The machines gave the
players free plays when they won and
the player could continue to play the game
to the extent of his winnings. This alone,
the district attorney contended, made the
machines gambling devices.
The District Court upheld plaintiff's con­
tention that the amusement afforded by
a free game or games, awarded the play­
er for a high score does not amount to
merchandise, money, representatives or
articles of value, checks or tokens redeem­
able in or exchangeable for money or other
thing of value, and that a free game is
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neither merchandise nor money nor checks
nor tokens redeemable in or exchangeable
for any other thing of value.
"It is a cardinal rule of statuatory con­
struction that where the language of a
statute is free from ambiguity, when the
words used are given their ordinary and
usual meaning, the courts should not look
further in its interpretation and should
not change its effect by giving the words
some unusual or seldom used meaning,"
said the court through Justice Marks, and
concurred in by Presiding Justice Barnard
and Justice Griffin.
FULL TEXT OF DECISION
IN THE DISTRICT COURT OF APPEAL
IN AND FOR THE FOURTH APPELLATE
DISTRICT STATE OF CALIFORNIA.
I. B. GAYER, Plaintiff and Respondent,
-vs-
THOMAS WHELAN, District Attorney of
San Diego County, Defendant and Appell­
ant.
Civil No. 2867 O P I N I O N
Appeal from a judgement of the Superior
Court of San Diego County, Hon. Charles
C. Haines, Judge. Judgement affirmed.
For Appellant: Thomas Whelan, District
Attorney; Duane J. Carnes, Deputy Dist­
rict Attorney.
For Respondent; Morris Lavine; Arthur
Mohr; Charles W. Lyon, and Swing &
Swing.
This is an appeal from a judgment order­
ing the return to plaintiff of fourteen pin
ball machines which defendant, in his
capacity as district attorney of San Diego
County, has seized and proposed to des­
troy under the provisions of section 335a of
the Penal Code.
The parties agree that the findings are
supported by the evidence and fairly pre­
© International Arcade Museum
sent the issue raised on this appeal. There­
fore we will look to the findings for a brief
summary of the facts.
Plaintiff owned fourteen pin ball ma­
chines which were placed in various bus­
iness houses in the city of Escondido for
operation by the public. On October 29,
1941, defendant in his capacity as district
attorney of San Diego County, seized them
as lottery or gambling devices and gave
notice of his intention to summarily destroy
them. Plaintiff brought this action to re­
cover their possession and was given
judgment. The trial court found:
"That said machines and each of
them were slot machines, contrivan­
ces and mechanical devices wliich
were played and operated by placing
and depositing t h e r e i n coins, by
means whereof and as a result of the
operation of which it was possible in
part by skill in such operation but
mainly by hazard and chance in re­
sult of such operation to win the op­
portunity to thereafter play one or
more free games, that is to further
operate the machine or contrivance
without the deposit or placing therein
of any additional coin or coins.
''That no merchandise, money, rep- .
resentative or articles of value, checks
or tokens, redeemable in, or exchang-
able for money or any other thing of
value, was won or lost or taken from
or obtained from such machines, nor
was anything so won, lost or obtained
except free games hereinabove re­
ferred to; that said free games were
represented upon said machines by
means of an electric light illuminat­
ing a number which showed the num­
ber of free games won; that said free
games were obtained from said ma­
chines by automatic release of the
coin slot attached to the machines,
thereby permitting the winner to play
said free games without depositing
additional coins in the machines in
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The operation of a similar machine is
clearly and briefly described in Middlemas
v. Strutz, (North Dakota) 299 N. W. 589.
Reference to that description makes it un­
necessary to repeat it here.
payment therefor; that the players of
said machines did not obtain there­
from any tangible tokens, checks,
tickets or other physical representa­
tive or token of value."
Defendant maintains that the foregoing
findings do not support the judgment for
the reason that the free games that could
be won on the machines represented such
an award of value that it brought their
operation within the statutes prohibiting
lotteries and gambling on such devices.
This is the sole question presented on
this appeal. It is one of first impression
in California under the precise facts before
us.
While there are no cases precisely in
point in California, counsel have been dili­
gent in citing authorities from other juris­
dictions. The decisions on the question
involved are in conflict.
Among many cases cited by defendant
are, Middlemas v. Strutz, supra; People
v. Gravenhorst, 32 N. Y. S. (2d) 760: State
v. Wiley, (Iowa) 3 N. W. (2d) 520; Kraus
v. City of Cleveland, 135 Ohio St. 43, 19
N. E. (2d) 159; In re Sutton, (Pa. Super.)
24 A. (2d) 756: Steely v. Commonwealth,
291 Ky. 554, 164 S. W. (2d) 977; People v.
One Pinball Machine, 316 111. App. 161,
44 N. E. (2d) 950; Giomi v. Chase, • 47
N. M. 22, 132 Pac. (2d) 715.
A D V A N C E
It is conceded that where the machine
returns tokens, money,or other articles that
may be redeemed for something of value
or used to replay the device, as a reward
for the player making a high score, or when
he may receive money in exchange for a
high score, the machine is a gambling
device coming within the provisions of the
majority of the statutes. A study of many
of the cases relied on by defendant dis­
closes the existance of such pay-offs which
distinguish them from the instant case and
eliminates them from further mention. The
only cases we have discovered, relied on
by defendant, in which there was not
some form of a pay-off following a suc­
cessful game, are, Middlemas v. Strutz,
supra; State v. Wiley, supra; Steely v.
Commonwealth, supra; people v. One Pin­
ball Machine, supra, and Giomi v. Chase,
supra.
M A C H I N E S
of some types are still avail­
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The Middlemas case turns upon the def­
inition of the word "effects" which is used
in the prohibitory statute of North Dakota.
The court held that the right to a free
game came within the definition of "ef­
fects" and therefore made the machine
gambling devices. Our statute is not so
broad and contains no such language.
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© International Arcade Museum
C H IC A G O
AUTOMATIC AGE
State v. Wiley, supra, turns on a lang­
uage of the Iowa statute which classes as
a gambling device "any slot machine or
device with an element of chance attend­
ing such operation". No such provision
appears in the California statute.
We are not able to distinguish Steely
v. Commonwealth, supra. People v. One
Pinball Machine, supra, and Giomi v.
Chase, supra, from the instant case. They
support the position of defendant except
perhaps for the difference in rules covering
statutory construction prevailing in those
jurisdictions and in California.
Plaintiff has been careful not to cite
any case in which it appears that there
was any kind of a pay-off in connection
with the operation of the machine. He cites,
among other cases, People v. Jennings,
257 N. Y. 196, 177 N. E. 419; State v. Waite
(Kansas) 131 Pac. (2d) 708, and in re Wig-
ton, 151 Pa. Super. 337, 30 A. (2d) 352.
People v. Jennings merely holds that
where the high score obtained by the
player only entitles him to the amusement
of additional free games, there is no reward
of sufficient value to bring the machine
within the definition of a gambling de­
vice. State v. Waite,supra. In re Wigton,
supra, and Commonwealth v. A Certain
Gambling Device, 151 Pa. Super. 348, 30
Atl. (2d) 357, seem to be exactly in point
with the instant case. They hold that the
reward of free games for a high score is
not of material value and does not bring
the pin ball machine within the definition
of a gambling device.
Little can be gained by further review
of cases from other jurisdictions. However,
before passing this phase of the case, it
should be observed that in practically all
of the cases cited by defendant it has
been said that the reward of free games
for a high score is a thing of sufficient
value to render the machine a gambling
device or lottery. With few exceptions
this is dicta in the opinions in which it
appears.
Section 335a of the Penal Code provides
in effect that after due proceedings taken,
any peace officer may seize and destroy
any machine or device, the possession or
control of which is penalized by the state
laws prohibiting lotteries or gambling.
Defendant maintains his right to destroy
the pin ball machines because their pos­
session is penalized by both the lottery
and gambling laws of the state.
Section 319 of the Penal Code defines
a lottery as follows.
"A Lottery is any scheme for the
disposal or distribution of property
by chance, among persons who have
paid or promised to pay any valuable
consideration for the chance of obtain­
ing such property or a portion of it,
or for any share or any interest in
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