Automatic Age

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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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