Steely v. Commonwealth

• Decision Date: 08 May 1942
• Citation: 291 Ky. 554,164 S.W.2d 977
• Parties: STEELY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

164 S.W.2d 977

291 Ky. 554

STEELY v. COMMONWEALTH.

Court of Appeals of Kentucky

May 8, 1942

Rehearing Denied Nov. 6, 1942.

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

H. B Steely was convicted of permitting a game or machine, by which money or other things may be won or lost, on his premises, and he appeals.

Judgment affirmed.

L. O Slier, of Williamsburg, for appellant.

Hubert Meredith, Atty. Gen., and Jesse K. Lewis, Asst. Atty. Gen for appellee.

THOMAS Justice.

Section 1960 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes, makes it unlawful for anyone with or without compensation to set up, carry on, keep, manage, operate or conduct, or assist therein "a keno bank, faro bank or other machine or contrivance used in betting whereby money or other thing may be won or lost", etc. Section 1967 of the same Statutes prescribes that "Whoever shall suffer or permit any game or table, bank, machine, or contrivance mentioned or included in § 1960 of this chapter, to be set up, conducted, kept or exhibited in any house, boat or float, or on any premises in his occupation or under his control *** shall be fined from two hundred and fifty dollars ($250.00) to five hundred dollars ($500.00) for each offense."

Appellant and defendant was charged by the indictment returned by the Whitley circuit court with violating the latter section. At his trial he was convicted, with an imposed fine of $250. After his motion for a new trial was overruled he filed a transcript of the record in this court with a motion for an appeal, which motion is now sustained. The usual list of grounds constituting alleged errors for which new trials should be granted are contained in the motion therefor, including the action of the court in overruling defendant's motion for a peremptory instruction of acquittal, and also complaint of instructions given to the jury. The other grounds we regard as wholly immaterial, even if sustained by the record, but at least some of them are not. We will, therefore, devote this opinion entirely to a consideration of the stated grounds, supra.

The testimony disclosed that the contrivance that defendant suffered and permitted to be set up and conducted on his premises (drug store) was what is usually known as a "Pin Ball" machine, which the testimony describes, and likewise describes its manipulation by the player. It consists of a small table with its surface slanting upwards from the end at which the player stands, and which is equipped with a plunger which he manipulates, striking therewith some balls, which are knocked towards the upper end of the table and they rebound and roll back towards the lower end with landings that are directed by the obstructions on the surface encountered by them on their return. Those obstructions are bulbs or other sorts of bumpers, and when touched by the ball in returning to the lower end of the table will light up. The player deposits a nickel in the provided place for that purpose before commencing, and if he succeeds in bringing about a prescribed result with the five shots which he is allowed for his nickel, he wins the right to a replay and perhaps, if he scores high enough he may be entitled to more than one replay. If on the replay he is again successful in making the required score of points he is entitled to a second replay, and so on. He obtains no property as a winning prize for his success, the stake consisting only in an effort to obtain replays. Defendant testified that the receipts from the contrivance during a week was between twelve and fifteen dollars, which, less his commission, goes to its owner, who has placed the contrivance on or in the premises with the consent of the owner of the latter.

Under the presentation as so made, defendant's counsel vigorously argues that his motion for a peremptory acquittal should have been sustained on the ground that the described contrivance which defendant suffered and permitted to be operated on his premises is not embraced by section 1960, supra, of our Statutes, in that, no "money or other thing may be won or lost" by the player. On the other hand, counsel for the Commonwealth, with equal force and vigor, argues that the chance of gaining a replay, or replays, thereby furnishing prolonged amusement and practice to the player, is at stake, which may be won or lost, and that such contingent right is embraced by the words "or other thing" as contained in the Statute. Defendant's counsel therefore, first contends that the ultimate prize upon success in the manipulation of the contrivance so described is not one within the meaning of the statute referred to, and that his client's winning is accomplished by skill and, therefore, the maintenance of the machine is not punishable, as it is declared by some courts, when the assumed distinction exists. But that contention, we conclude, is not sustained by the evidence in this case. It is true that with practice a player may develop some skill which would aid him in bringing about the successful result of obtaining the right to a replay; but even with such practiced manipulater the chances of success in the plunging of the five balls allotted to him are few and far between, and the opportunity for skill to have any appreciable effect on the result of the play is almost completely overshadowed by the element of chance. So that this contention by counsel is eliminated from the case--the evidence heard at the trial refuting it. There is left, therefore, for consideration the question of whether or not the right to a replay, or replays, extended to the manipulater upon his making the required showing to obtain that right, is a thing other than money which may be won or lost by the player in manipulating the contrivance.

It will be observed that the denounced engagement is one "whereby money or other thing may be won or lost". The "other thing" which may be won or lost is not confined to money, nor to corporeal articles of money value. Also it is true that the winning of the right to a replay without any additional deposit possesses the value of a nickel, the amount of its cost. Therefore, the player, if successful, wins the value of a nickel as invested in such an engagement.

But there is also a plus value, which is the chance of obtaining another or a number of other free rights to additional plays. Therefore, it would seem that the position of defendant's counsel--that the prize to be won or lost is not embraced by the words "other thing"--is illogical and without foundation.

Before citing the opinions of this or other courts declaring the rule applicable to the facts, it should be kept in mind that many writers of judicial opinions are frequently guilty of dictum statements in composing them. Instead of confining their opinions to declaring the law arising upon the specific facts of the case, the writers thereof engage in stating--so as to illustrate and emphasize their actual decisions upon the facts presented--what would be the law as applicable to a different state of facts, which is the rankest...