People v. One Pinball Mach.

• Decision Date: 03 December 1942
• Docket Number: Gen. No. 9775.
• Citation: 44 N.E.2d 950,316 Ill.App. 161
• Parties: PEOPLE v. ONE PINBALL MACHINE.
• Court: United States Appellate Court of Illinois

316 Ill.App. 161

44 N.E.2d 950

PEOPLE

v.ONE PINBALL MACHINE.

Gen. No. 9775.

Appellate Court of Illinois, Second District.

Sept. 17, 1942.

Rehearing Denied Dec. 3, 1942.

Appeal from County Court, Winnebago County; Fred J. Kullberg, Judge.

Proceeding by the People against One Pinball Machine owned by Henry Fox wherein Henry Fox filed an answer admitting that he was the owner of the machine and denying that it was a gambling device or a gambling device per se and denying that its seizure was pursuant to law and averring that the machine was an amusement device and a mechanical game for amusement only and praying for an order directing return of the machine to him. From an order ordering the destruction of the machine as a gambling device, Henry Fox appeals.

Affirmed.

George T. Liddell, of Rockford, for appellant.

Max A. Weston and Wm. H. Gates, both of Rockford, for appellee.

DOVE, Justice.

This is an appeal from an order of the County Court of Winnebago County ordering the destruction of a certain pinball machine as a gambling device. The machine was in the possession of Henry Fox and was summarily seized in his place of business in the City of Rockford by Deputy Sheriffs after one of them had played it. After the seizure, the State's Attorney filed a petition alleging, among other things, that Paul Margason, a Deputy Sheriff, on October 20, 1941, entered the place of business of Henry Fox located in Rockford, and known as the Sportland Amusement Arcade, and found therein a gambling device in which he hazarded and played money in the machine in return for which he received certain free games; that the machine was a gambling device per se, commonly known as a pinball machine; that five balls may be played for five cents and that the player is not in control of the balls while they are in motion and that the machine was seized in pursuance of the law and is now in custody of the Sheriff. The petition prayed for an order authorizing its destruction. Henry Fox filed an answer admitting that he was the owner of the machine, denied that it is a gambling device, specifically denied that it is such per se and denied that its seizure was pursuant to law. In his answer he averred that the machine was an amusement device and a mechanical game for amusement only and prayed that it may be ordered returned to him and the petition dismissed.

Upon the hearing the machine was produced in open court and it was stipulated that it is a frame table about two and one-half feet high, approximately four feet long and two feet wide, with a glass cover, approximately parallel with the floor, the rear end being slightly elevated; that over and above the front end and perpendicular to the table is a case approximately two feet high, eight inches thick, of the same width as the table, having a glass frame with a series of numbers and figures which light up at various occasions; that on the surface of the table under the glass top are a series of colored glass objects, bearing numbers one through ten, which light at times; that there are also five similar white objects, and a series of rubber bumpers; that there is a slot or groove on the right hand side of the table from which balls may be propelled out onto the center of the table so that they hit the various bumpers and lights, finally coming to rest at a large groove near the lower end of the machine; that when a coin is inserted in a sliding injecting device the machine is ready for operation; that five balls are played; and that the machine bears a license amusement tag of the City of Rockford.

An instruction card was read into evidence, which reads: “Choose winning round by turning black knob in front of cabinet. After lighting all colored bumpers from 1 to 10 the player may light the white bumpers in rotation beginning with 11, then 12, etc. For lighting all bumpers player receives 20 or more points. When bumper selected for winning round has been lit player receives skill points as indicated. All lit white bumpers hit thereafter also give skill points. All lit colored bumpers score 1000. Player receives 1 skill point for 46,000.” Down the sides are the words: “5 cents 5 balls.” It was further stipulated that where the instruction card refers to skill points that “skill points” means registering of the free game.

The deputy who played the machine was the only witness who testified. He described the mechanical features of the machine and the way each ball is placed in front of the propelling plunger and continued: “What happens depends upon how you regulate the plunger. You can regulate the plunger to shoot for the one, two or three. By regulate I mean pull it back a certain distance for certain lights. Each time the ball hits the bumper the light lights up and there is 1000 points each time those particular bumpers are hit.” The following questions were then asked and answered: Q. “Can you direct the ball at any particular object?” A. “You can.” Q. “Can you be certain what object it is going to hit?” A. “Almost certain, depending upon the way you use the plunger.” He then testified that he played the machine about thirty-five times, using a nickel each time; that about the thirtieth or thirty-second time he struck all the lights on the machine (eleven) required for free plays and four free plays were automatically registered by the lighted number “four” on the back board: that he then played those extra games without putting in any more nickels: that after doing so he put in two more nickels and got four additional free games: that the plunger that starts the ball on its course operates on a spring: that the distance it is pulled back determines the force with which the ball is struck by the plunger and this force in turn determines the speed at which the ball travels: that just above the plunger is an opening with a mark indicating various distances the plunger may be pulled back before it is released: that when he said he had some control over the ball, he meant he controlled it by the tension he put on the spring, by the distance he pulled it back and that the machine does not release slugs or tokens and that he received nothing in the operation of the machine except the privilege of replaying without paying additional nickels, the number of free games being automatically registered and when registered all that is necessary to again play the five balls is to push the slot in where the original coin was inserted.

The proceeding is under Section 2 of “An Act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes” (Ill.Rev.Stat.1941, chap. 38, par. 342) which provides:

“Every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device and shall be subject to seizure, confiscation and destruction by any municipal or other local authority within whose jurisdiction the same may be found.”

Appellant's claim that this section is unconstitutional as providing no mode of judicial investigation into the question of whether seized property is a gambling device within the meaning of the statute cannot be entertained. It was not raised in the trial court and this court has no jurisdiction of the question. People v. Reed, 287 Ill. 606, 122 N.E. 806;People v. Powers, 283 Ill. 438, 119 N.E. 421. Furthermore the Supreme Court has held it is not unconstitutional for the reason assigned. Bobel v. People, 173 Ill. 19, 50 N.E. 322,64 Am.St.Rep. 64;Frost v. People, 193 Ill. 635, 61 N.E. 1054,86 Am.St.Rep. 352. The claim that the trial court was without jurisdiction will be considered later herein.

In 24 Am.Jur. “Gaming and Prize Contests”, § 35 at pp. 422, 423, it is said that there are so many kinds of slot machines differing so much in construction and operation and used for such varied purposes that it is difficult to lay down any general rule fixing their status with reference to the question of gaming or gambling: that a slot machine which in return for a coin deposited therein, dispenses merchandise of the value of such coin, accompanied at uncertain and occasional intervals by a varying amount of money, trade checks or coupons, or more broadly, one which provides an element of chance, is a gambling device: that according to the generally prevailing opinion, where the return to the player is thus dependent on an element of chance, a slot machine is a gambling device even though the player is assured of his money's worth of some commodity and hence, cannot lose: that 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. Many cases are cited sustaining the text and many more will be found in the annotations appearing in 38 A.L.R. 73; 60 A.L.R. 343; 81 A.L.R. 177; and 135 A.L.R. 104. An examination of some of these cases discloses the wide variety of the many mechanical devices for playing games which have been the subject of consideration by the courts in many of the States in this country and in Canada in order to determine whether they were gambling devices.

In Painter v. State of Tennessee, 163 Tenn. 627, 45 S.W.2d 46, 81 A.L.R. 173, a mint-vending machine was held to be a gambling device within the meaning of the statute of that State. This machine in addition to delivering a package of mints for the customer's coin also, at times, emitted metal checks or chips, the number of which was controlled by the interior mechanism of the machine. These metal checks or chips had no intrinsic value and were used solely to operate another part of the machine by which a combination of symbols was made to appear,...