Automatic Age

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.
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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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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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