Commonwealth v. Plissner

• Decision Date: 27 October 1936
• Citation: 295 Mass. 457,4 N.E.2d 241
• Parties: COMMONWEALTH v. PLISSNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 457

4 N.E.2d 241

COMMONWEALTH v. PLISSNER.

Supreme Judicial Court of Massachusetts, Hampden.

October 27, 1936

Exceptions from Superior Court, Hamp den County; Fosdick, Judge.

Harry Plissner was convicted of setting up and managing a lotter and with keeping in his building a slot machine for purpose of playing at an unlawful game for money, and he excepts.

Exceptions overruled.

T. F Moriarty, Dist. Atty., of Springfield, and J. F. Kelly, Asst Dist. Atty., of Holyoke, for the Commonwealth.

I Gelin, of Springfield, for defendant.

PIERCE, Justice.

The defendant was found guilty by a jury in the Superior Court on two complaints under G.L.(Ter.Ed.) c. 271, one charging that he ‘ was concerned in setting up and managing a certain lottery for money and merchandise’ (section 7), and the other charging that he ‘ did commonly keep and suffer to be kept in a building and place actually used and occupied by him’ ‘ certain apparatus, to wit, a slot machine for the purpose of playing at an unlawful game or sport for money or other thing of value’ (section 5). Sentence was imposed, but execution thereof has been suspended. Upon motion, the complaints were consolidated for the purpose of filing and presenting the defendant's exceptions to this Court.

A description of the machine involved in the cases as presented in the record is as follows: ‘ The machine works primarily on the same principle as traveling excavating cranes are employed in commercial and industrial use. Upon a supporting platform a ground is made of hard candy about the size of small pebbles, loosely spread. Positioned upon this support are placed various objects of merchandise consisting generally of clocks, knives, cigarette lighters, cameras, flashlights, compacts, and other specialty items. These articles are positioned and displayed in what is known as the operating filed. To the rear of the display case, there is a boom from which is suspended a grasping device. When the machine is not in play, the boom is in a vertical or nearly vertical position. The grasping device has three prongs, which when extended has a spread of approximately 3 5/8 inches. The machine is constructed mechanically so that the grasping device can be dropped to practically any point within the operating field. Its aim from right to left and from left to right is controlled by a regulator wheel on the face of the machine. This regulator wheel as it is turned, correspondingly and accurately change[s] the aim of the boom. The point from front to rear at which the grasping device will light, is shown on an indicator on the rear of the machine, which indicator is plainly marked at its extreme front and rear respectively, and which by lines across the indicator, indicates changes of an inch or any fraction thereof. The articles themselves, the actual shift, in the aim of the boom from right to left, and the resting place of the grasping device from front to rear as disclosed by the indicator, are all observable to a customer before the machine is placed in operation. After the customer has selected a desired object and has, by means of the regulator wheel gauged the spot at which the grasping device is to rest, he then inserts a coin in the machine, which sets it in operation. After the machine is in operation, the boom drops from a vertical to a more horizontal position (extent to which it reaches a horizontal position being dependent upon whether the operator has regulated for a forward or backward drop), the grasping device drops, the prongs close on the object desired and if the customer's efforts have been successful, the article is grappled, raised, dropped in a delivery chute and is delivered automatically to the customer.’

A summary of all the testimony material to the issues raised is set forth in the record. There was evidence that on August 30, 1935, three Springfield police officers, acting under orders of Captain Blodgett, visited three places to make an examination of so called ‘ digger’ machines. One officer, Murphy, testified that he played each of three machines several times, and that his companions did likewise. As to the grasping device on the machines the same officer testified: ‘ On those occasions I attempted to manipulate the machine so that it would pick up a particular object other than the candy. I tried so it would get over and clamp on it. It would either pull one side or the other or if it gripped it it would not hold it, except that there * * * [indicating an article which he had secured.] I did not try to get that. I just caught it. I tried to fix on some other article. I think it was the clock I was after. This pronged instrument with may directing of it would fix on the clock several times but it would slip or let go of it. In other words, it did not hold it and return it into opening and into the slot there. * * * Merely by the operation of the wheel you fix the general direction in which the derrick when the machine begins to function will go. Then your part is over. When you do that, that is when you fix the direction of the derrick by turning the wheel, the derrick remains in the same general position it is in now. It starts the machine working and it lifts up and comes down here. With that operation you have nothing to do. * * * When I was going for that particular article the finger instrument would crawl near it or over it, slip off and pick up three or four pieces of that candy, go back up again and drop it in, and I dropped in another nickel and tried it over again. The grasping device dropped down over it or near it sometimes, it did not go over it, went to one side of it, tipped it over sometimes, and sometimes it would grasp it. It would not drop it. I[t] would just grasp it and keep on going up and leave it as it was; sometimes it moved it a little ways one way or another but would not raise it. On other occasions as the grasping device would drop, it would deflect away from the articles toward which I direct it to one side and then it would pick up three or four pieces of candy.’ The police officer testified more particularly in substance that at the first place where the machine was located he played the machine seven times inserting nickels in the slot, and got nothing; that at the second place he played the machine six times and got a small celluloid elephant, that at the third place he played seven times and got nothing; that on each occasion while the officers were operating the machine he saw others, not officers, playing the machine and ‘ they did not seem to have any luck’ ; and that each time they played they appeared to attempt to direct the grasping device toward some particular object in the case. Another officer, one Chapman, testified in substance that the played the machine nine times at the first place and got nothing; that he played the machine at the second place eleven times and got two articles, and that at the third place he played nine times and got one article. On cross-examination he testified, in substance, that he decided before he played the machine which article he wanted to get; that he read the directions carefully and followed the directions shown on the indicator and on other parts of the machine; that he played for the article he wanted to get, and that in every case he got what he aimed for. Other officers, including Captain Blodgett, testified as to their experience and the result which attended their operation of the machine.

One of the defendant's machines, seized at a bus terminal was brought into court at the trial so that it could be operated before the jury. The defendant objected to such demonstration on the ground that the mechanism had been damaged in transit from the bus terminal to the court room. The trial judge sent out the jury and heard evidence on this preliminary question. Captain Blodgett testified that the machine in an upright position had been carefully moved by professional truckmen. He also arranged the articles to be picked up in such positions as he testified substantially represented their positions when the machine was at the bus terminal. Thereupon the trial judge over the exceptions of the defendant allowed the machine to be played before the jury. The defendant also excepted to the admission of evidence of the results of experiments conducted in the District Court, on the ground that at that time the articles in the machine were not in the same positions as they were when it was at the bus terminal.

The testimony favorable to the defendant was to the effect that successful operation of the machine depended on the skill of the operator, that the machine used for the experiments was not in proper working order at the time of the trial, and that the witnesses in their unsuccessful operation of the machines did not follow the directions set out on the top of the machine.

At the close of the testimony the defendant presented written motions for verdicts of ‘ not guilty’ together with a number of requests for instructions. The motions for directed verdicts were denied. As to the requests some were given and some refused. Since the defendant has not argued the question of the correctness of the action of the trial judge upon the separate requests, it is unnecessary to set them forth separately or...