Mackay v. State

• Decision Date: 21 October 1938
• Docket Number: A-9356.
• Citation: 83 P.2d 611,65 Okla.Crim. 149
• Parties: MACKAY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

83 P.2d 611

65 Okla.Crim. 149

MACKAY v. STATE.

No. A-9356.

Court of Criminal Appeals of Oklahoma

October 21, 1938

Syllabus by the Court.

1. Oklahoma Statutes, 1931, Section 2193, Okl.St.Ann. tit. 21, § 944, prohibits the operating, conducting, or setting up of a slot machine for the purpose of being played for money property, checks, credits, or any representative of value.

2. The name given a machine does not determine whether it comes under the classification of a slot machine, but this is determined by the manner and result of its operation. If it is so operated that one who plays it stands to win or lose money, trade, or checks, by hazard or chance; or its operation is such that, although the player in any event will receive something, or he stands a chance to win something in addition, it comes within the classification of a gambling device.

3. Facts examined, and machine operated does not depend upon the skill and adaptness of the player, but the controlling inducement for the playing of the same is the securing of the prize offered.

Appeal from County Court, Okfuskee County; E. Huser, Judge.

E. J Mackay was convicted of setting up and operating a slot machine, and he appeals.

Judgment affirmed.

Jean P Day and Robert Burns, both of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen and Sam H. Lattimore, Asst. Attys. Gen., and Jess I. Miracle, Co. Atty., of Okemah, for the State.

BAREFOOT Judge.

The defendant was charged in the County Court of Okfuskee County with the unlawful operation of a slot machine; was tried, convicted, and was by the court sentenced to pay a fine of $25 and costs, and has appealed.

This appeal is brought to this court for the purpose of determining whether or not the setting up and operating of an "Esco Novelty Candy Vending Machine, No. 382", is a violation of the slot machine statute of this state. The statute in question, Oklahoma Statutes, 1931, Section 2193, Okl.St.Ann., tit. 21, § 944, is as follows: "Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted in or about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be played by others for money, property, checks, credits or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars; or by imprisonment in the county jail for a term of not more than thirty days, or by both such fine and imprisonment."

It is admitted by the parties that the machine was set up and operated by defendant. It is the contention of defendant "that the vending machine used here does not come within any of the machines or devices, or the operation thereof, as described by the foregoing Oklahoma statute, and that his machine is not a slot machine at all, but a coin vending machine for merchandise, so arranged in its mechanism and operation, that the operator receives merchandise which is equal or greater than the coin deposited in the machine, and in addition thereto, may by the exercise of skill, experience and judgment, secure for himself one of the prizes placed upon the revolving turn table within the glass covered compartment."

The evidence in this case reveals that the machine in question was about the same size and character of the ordinary slot machine. It was operated by a player placing a nickel in the slot and it drops down and makes contact with the motor which starts the turn table. On this turn table is located different articles of the value from five to forty-nine cents, as shown by the evidence. A crane is located just above the turn table, and attached to it are tongs, which are handled by an instrument on the front of the board, known as the "locator." When the nickel is deposited and the table begins to revolve the crane carries the tongs above the prizes, and by the pressing of the "locator", the player is supposed to grab with the tongs the prize which he desires. This is executed by his shoving the "locator" at the exact time that it is over the prize he desires.

The defendant explained its operation as follows:

"Q. Say you wanted to get some definite object, how would you operate the machine? A. I would locate the object, its distance from the outside rim, or inner rim, of the rotating table and adjust it so it would be underneath the crane and as the crane lowered if I saw it was not coming down exactly I could still move it over even after the crane meets the object, the crane can be jiggled and the hook will move one way or another and you have a lot of time, not a second, but plenty of time to move it. I have plenty of time after it hits the object to move the hook and make it fall over instead of closing if I am expert enough, maybe not every time depending upon my dexterity."

"Q. That would include your sense of distance and sense of location? A. Coordination between my mind and hand, that is the difficult part, what we term synchronization of mind and hand."

On each play the person operating the machine received from a container located on the front a certain amount of candy, known as "red hots," and as revealed by the evidence of the value of one and one-half cents. The evidence of several parties who had played the machine at defendant's place of business was offered by the state. They testified they had played the machine, some four times and had secured two prizes, some six times and had secured two prizes, some five times and secured one prize. They also testified they were playing the machine for prizes, and that often the candy was not taken. There was an effort on the part of defendant to show that by an absolute accurate handling of the "locator" one would be able to secure the prize desired at each turn of the wheel. The evidence of the state does not bear this out. The evidence showed the tongs could only be moved forward and not to the side when they had stopped. If no prize was won the player only received the "red hots", which were of the value of one and one-half cents, for his five cent investment.

The question of the operation of a slot machine or of coin vending machines for the sale of merchandise has been before the Supreme Court and this court upon four different occasions; but has been before the courts of this country many times. The decisions have not always been in harmony, but many uniform principles of law have been laid down by the courts which apply with force and logic to the operation of these different kinds of machines, and as to their being a violation of the statute above quoted, and coming within the terms of a gambling device. It is almost universally held that if there is an element of chance in the operation of the machine, that it then comes within the inhibition of the statute. One of the strongest attributes entering into this element of chance is whether the player secures the full value of the money invested on each play. In the case at bar it will be noted that the evidence established that when a prize was not won the player only received goods of the value of one and one-half cents, for each five cents invested, which would bring it squarely within the rule above announced.

The first case to come before this court was in State v. Johnson, 15 Okl.Cr. 460, 177 P. 926. In this case defendant was charged with the violation of the above statute by the operation of a slot machine. The evidence established that each time the machine was played the operator would secure a package of chewing gum, and at different times would receive from two to twenty checks which could be used for the purpose of purchasing merchandise at the place of business where the machine was being operated. The checks could also be used to operate the machine in the place of nickels. The lower court sustained a demurrer to the evidence of the state for the reason that "the testimony is insufficient to make out an offense under the law." This court overruled the lower court, saying [page 928]: "By enacting the statute against slot machines, the Legislature intended to prohibit the setting up, operating, or conducting of any kind of a slot machine for the purpose of having or allowing same to be played by others for money, property, checks, credits, or any other representative of value. It was intended to prohibit the placing of such a machine in any place of business as an invitation to the public to play same for money or other property; to invite the public generally to take a chance of getting something for nothing."

The statute was next construed in the case of Nelson v. State, 37 Okl.Cr. 90, 256 P. 939. This machine was operated by placing a coin therein, operating a lever, and the player would receive one package of mints, and in some instances, would receive trade checks, each of the value of five cents in merchandise. These checks could be played in the machine for other checks, which, however, was against the rule of defendant. The court said [page 940]: "The delivery of these checks not being uniform constitutes a chance or hazard under which the person playing the machine might receive value greatly in excess of the coin deposited. This makes the machine a gambling device. * * * It is equally gambling if he may win by chance more than the value expended by him."

The Supreme Court of this state had under consideration this statute in the case of Colbert v. Superior Confection Co., 154 Okl. 28, 6 P.2d 791. In this case the lower court enjoined the officers of Carter County from interfering with defendant in the operation of slot machines. The evidence established that the machine paid in checks. That...