Adams v. Antonio, 1796.
| Decision Date | 10 October 1935 |
| Docket Number | No. 1796.,1796. |
| Citation | 88 S.W.2d 503 |
| Parties | ADAMS et al. v. ANTONIO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Limestone County; H. F. Kirby, Judge.
Suit by W. S. Antonio against Will Adams and others. From a judgment granting plaintiff a temporary injunction and overruling defendants' motion to dissolve such injunction, defendants appeal.
Judgment in accordance with opinion.
Roy Lewis and Norton Fox, both of Groesbeck, and Wm. McCraw, Vernon Coe, and Pat Neff, Jr., all of Austin, for appellants.
Rosenfield & Berwald, of Dallas, amicus curiæ.
W. M. White, of Mexia, and L. W. Shepperd, of Groesbeck, for appellee.
This suit was brought by W. S. Antonio against Will Adams and Roy Lewis, sheriff and county attorney, respectively, of Limestone county, and A. B. McKenzie, chief of police of the city of Mexia. The plaintiff alleged, in substance, that he was the owner and operator of a number of marble machines in Limestone county; that said machines were not gambling devices; and that the use thereof in nowise violated the penal laws of the state. He alleged that the defendants were threatening to seize and destroy said machines and to arrest the plaintiff and prosecute him for violating the gambling laws of the state. He prayed for a temporary injunction restraining said officers and all other peace officers of said county from interfering with, disturbing, or impeding the free and untrammeled use of said machines in the places of business where they were located and that said officers be enjoined from filing complaints against the plaintiff and arresting or prosecuting him pending further orders of the court. The trial court, or an ex parte hearing, granted the injunction as prayed. Later, after the hearing of evidence, the court overruled defendants' motion to dissolve the temporary writ of injunction, and the defendants appealed to this court.
The evidence discloses that plaintiff owns and has on exhibition in various places in Limestone county a number of marble machines of different makes. All of these machines are built and operated on substantially the same principle. The cabinet of each machine has a flat, horizontal top in the shape of a table approximately 18½ inches wide and 42 inches long and is mounted on four legs, with one end of the table a little lower than the other. The table legs are capable of being adjusted so as to alter to some extent the elevation or tilt of the table. A game is played on the machine with marbles. The playing board on top of the table, which is protected by a glass cover, has a number of holes in it into which the marble used in playing the game can lodge. Springs and resilient pins are driven into the surface of the board at various places and particularly on the upper side of each of these holes. These pins and springs are used to divert the ball and cause it to roll in a zigzag fashion in uncertain directions across the surface of the board. The marble used in playing the game rests in an alleyway at the lower end of the board and to the right of the player. The operator stands at the lower end of the table and by means of a plunger propelled by a coil spring hits the marble causing it to go up the alleyway and follow along the course of a curbed metal piece across the top of the board to and against a coil spring at the left of the top of the board. When the marble strikes the coil spring, it is caused to rebound onto the playing field. The operator, by regulating the distance the plunger is drawn back before being released and allowed to hit the marble, can, to some degree, control the extent of this rebound, but he has no other control over the marble. After the marble rebounds onto the playing field, it hits the pins or springs near the top of the board and glances from one pin or spring to another as it crosses from the upper to the lower end of the board until it finally rolls into one of the holes in the board or rolls out and off the field at the lower end of the board. The player, in order to secure a marble with which to play the game, must deposit a nickel or 5-cent piece of money into the machine and the machine automatically supplies the playing marble. Some machines supply only one marble for each 5-cent piece so deposited, while others supply as many as ten marbles. The machine pays off to the winners automatically in money. These winnings or losses are determined by the particular hole into which the marble falls. If the marble rolls into some of the holes, the machine pays off 10 cents. Other holes are good for as much as $1 to $1.50 each. Still other holes do not pay anything. Some of the machines pay the players on an average as much as 85 per cent. of the amount deposited by them and retain the other 15 per cent. for the proprietor. Others return to the players as low as 65 per cent. of the amount deposited by them and retain for the proprietor as much as 35 per cent. Most of the machines are electrically equipped so that the contact made by the marble when it falls into the payoff hole causes the money necessary for the payoff to fall into a till that is accessible to the player. If the machine is tilted by the player in an attempt to control the course of the marble, the electrical contact is broken and the machine will not pay off. The owner of the machines places them in various business houses throughout the county, keeps them in repair, and at intervals opens the cash drawer, extracts the winnings, and divides them equally between himself and the proprietor of the place of business where the machine is exhibited.
Pertinent provisions of our Penal Code read as follows:
The above-quoted article 619, in language that is so clear that it cannot be misunderstood, makes it illegal for any person to "keep or exhibit for the purpose of gaming, any policy game, any gaming table * * * or device of any name or description whatever, * * * or table of any kind whatsoever, regardless of the name or whether named or not." The so-called "marble machines" here under consideration have flat horizontal tops and are supported by legs and have all the other essential characteristics of what is commonly known as a table. The appellee in his pleadings refers to the tops of these "machines" as "tables." The evidence discloses that a game is played on these tables and that under the plan used in operating them the player deposits a 5-cent coin and receives in return one or more marbles to be used in playing the game. These marbles are then played through the machine in an attempt...
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