Giomi v. Chase
Citation | 47 N.M. 22,132 P.2d 715 |
Decision Date | 31 December 1942 |
Docket Number | No. 4725.,4725. |
Parties | GIOMI et al.v.CHASE et al. |
Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; Bryan G. Johnson, Judge.
Action by Hugo Giomi and another, copartners, doing business under the firm name and style of Giomi Brothers, against Edward P. Chase, Attorney General, and another for a declaratory judgment as to whether possession or ownership of pinball machines violates statute prohibiting operation of games of chance played with slot machines or other gaming devices. Judgment for plaintiffs, and defendants appeal.
Reversed and remanded with instructions.
Where language of statute is clear and unambiguous, there is no room for construction thereof.
Edward P. Chase, Atty. Gen., and George H. Hunker, Jr., Asst. Atty. Gen., for appellants.
Mechem & Hannett, of Albuquerque, for appellees.
The question for decision is whether free games awarded the player for his sole enjoyment and amusement for successful operation through chance of a so-called pinball machine, constitute “anything of value” within the meaning of such language as employed in 1929 Comp. § 58-201, (N.M. S.A.1941, § 41-2201), making it unlawful to play at or operate a game of chance played with cards, dice, slot machine or other gaming device, for money or anything of value.
The question arose in a suit by the plaintiffs against the Honorable E. P. Chase as Attorney General, and the Honorable Quincy D. Adams as Acting District Attorney of the Second Judicial District, as defendants, for a declaratory judgment as to whether the possession or ownership of these so-called pinball machines constitutes a violation of the statute mentioned contrary to an opinion theretofore rendered by the Attorney General. The complaint alleged it to be the duty of the defendants, who are the appellants here, to enforce the criminal statutes of the state and that they threatened to file criminal informations against plaintiffs as lessors of said machines and their several lessees in the city of Albuquerque by virtue of their possession and ownership thereof. Answering, the defendants admitted it was their purpose to file criminal informations against the plaintiffs as alleged in the complaint and they joined in the request that the true meaning of the statute in the respect questioned be declared, stating it as their belief that a violation was involved. Hence, we do not pause to consider the wisdom of applying generally the declaratory judgment act to situations involving threatened criminal prosecutions.
The findings were mainly deduced from the pleadings. It thus was admitted that on and prior to October 1, 1941, the plaintiffs had leased to various persons under the arrangement pleaded pinball machines of the kind described; that such machines do not pay or deliver to the person operating the same any money, property, merchandise, chip, token, or any other tangible thing, but instead only amusement to the player; that the defendants threatened criminal prosecutions against all persons, including the plaintiffs, who owned or operated said machines, pursuant to an opinion by the Attorney General that they constituted gaming devices within the interdiction of the statute above mentioned.
The machine, commonly known as a “pinball machine”, and its operation, are described in the findings as follows:
The trial court made the additional finding that no evidence was offered disclosing that the playing of the machines tends to or does promote gambling or corrupt the morals of any person; also, that there was no showing of any evils attendant on their use or operation in public places.
The court made the following conclusion touching the legality of owning or operating a machine of the kind described in the findings, to-wit: “The Court concludes as a matter of law that the operation of the pin-ball machines described in the pleadings and the findings of fact, are not gaming devices or games of chance played with slot machines, or a gaming device played or operated for money or any thing of value within the purview of Section 58-201, New Mexico Statutes Annotated, Compilation of 1929.”
It further concluded that amusement is a thing of value (a conclusion concurred in even by counsel for appellees) and that the plaintiffs were entitled to an injunction restraining defendants from enforcing the statute against them on account of the ownership or operation of said machines. A declaratory judgment conforming to the conclusion quoted was entered in which plaintiffs were given leave to apply for consequential relief at any time thereafter in accordance with the terms of the New Mexico declaratory judgment act.
[1] The statute involved, 1929 Comp. § 58-201 (N.M.S.A.1941, § 41-2201), reads as follows: “It shall hereafter be unlawful to play at, run or operate any game or games of chance such as keno, faro, monte, passfore, passmonte, twenty-one, roulette, chuck-a-luck, hazard, fan tan, poker, stud poker, red and black, high and low, craps, blackjack or any other game or games of chance played with dice, cards, punch boards, slot machines or any other gaming device by whatsoever name known, for money or anything of value, in the state of New Mexico.”
There is present in the case before us every element necessary to brand the pinball machine a gaming device within the statute, if the free games awarded for its successful operation constitute anything of value as intended by the statute. Price, prize and chance are involved certainly. But, the prize being free games for the player's own amusement, the question recurs whether this is anything of value within the purview of the statute.
The precise point to be decided is a narrow one. We have no New Mexico decision parallel on the facts. Grafe v. Delgado, 30 N.M. 150, 228 P. 201, holding the doctrine of ejusdem generis applicable in arriving at a proper construction of a certain portion of the statute affords little aid. In State v. Apodaca, 32 N.M. 80, 251 P. 389, we held that machine to be a gaming device which, for every coin deposited, paid the player its value in chewing gum but with the chance, at each play, of winning checks redeemable in merchandise, having a greater value. This case involved primarily the contention that because the machine invariably paid the player the value of his money in chewing gum, the mere circumstance that it sometimes paid him a greater value in checks redeemable in merchandise, did not constitute it a gaming device. We rejected the contention. But this does not help us in answering the query whether amusement of the player is anything of value within the purview of the statute. The trial court's decision turned on the view that it is not. With this conclusion we are unable to agree.
Although there is some authority to the contrary, the texts and better reasoned cases support the view that amusement is a thing of value under statutes of similar purport to ours. 24 A.J. 423; annotations in 38 A.L.R. 73, supplemented in 81 A.L.R. 177; 26 Va.Law Rev. 955; Painter v. State, 163 Tenn. 627, 45 S.W.2d 46, 81 A. L.R. 173; Alexander v. Martin, 192 S.C. 176, 6 S.E.2d 20; Colbert v. Superior Confection Co., 154 Okl. 28, 6 P.2d 791; State v. Baitler, 131 Me. 285, 161 A. 671; Boynton, Attorney General of Kansas v. Ellis, 10 Cir., 57 F.2d 665; Broaddus v. State, 141 Tex.Cr.R. 512, 150 S.W.2d 247.
The author of the text on Gaming and Prize Contests, in 24 Am.Jur. 423, has the following to say on the subject under discussion, to-wit: “Furthermore, a machine which returns merchandise of the value of the coin played therein and, in addition, a chance of receiving a varying amount of checks which may be used to play the machine for amusement only is a gambling device, the right to continue the operation of the machine for amusement being a thing of value within statutes directed against gaming.”
The author of the supplemental annotation of the subject “Slot vending machine as gambling device” in 81 A.L.R. 177, says: “Slot vending machines which, in return for coins deposited therein, dispense merchandise, accompanied at occasional and uncertain intervals by a varying amount of checks or tokens (which in...
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