Couch v. State

• Decision Date: 12 February 1941
• Docket Number: A-9702.
• Citation: 110 P.2d 613,71 Okla.Crim. 223
• Parties: COUCH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

110 P.2d 613

71 Okla.Crim. 223

COUCH v. STATE.

No. A-9702.

Court of Criminal Appeals of Oklahoma

February 12, 1941

Syllabus by the Court.

1. The term "ejusdem generis" is recognized as a rule of construction, and its application does not change the rule that courts will endeavor to ascertain the true legislative intent in construing statutes.

2. The legislative intent should be sought in the ordinary meaning of the words of the statute, construed in view of the connection in which they are used, and of the evil to be remedied.

3. The "police power" is an inherent attribute of state sovereignty, under which the state, within constitutional limitations, may determine what is dangerous and injurious to public order, safety, health, morals, and general welfare of society.

4. Police power should not be invoked where the subject to which it is directed has no substantial relation to public health morals, or welfare, or for a matter for which by law no person ought to be punished.

5. The name given to a machine does not determine whether it comes under the classification of a slot machine as defined by House Bill No. 125, Chap. 15, art. 3, p. 8, Session Laws of Oklahoma, 1939, 21 Okl.St.Ann. § 964 et seq., but that is determined by the manner and result of its operation.

6. The passage of the act, House Bill No. 125, Chap. 15, art. 3, p 8, Session Laws of Oklahoma, 1939, 21 Okl.St.Ann. § 964 et seq., defining a slot machine and making it unlawful to play or operate the same by inserting into said machine a coin chip, token, check, credit, money, etc., by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value, and defining a thing of value to be any money, coin, currency, check, chip token, credit, property, tangible or intangible, amusement or any representative of value or any other thing, is not an unreasonable exercise of the police power.

7. Evidence examined, and held that a five ball marble machine which can only be operated by inserting a nickel into a slot, which releases five steel balls into a chute, which the operator would shoot by releasing a plunger on the machine, which balls, when shot, could strike several pins or objects within said machine, depending upon skill or chance of the operator, and which is operated for amusement, comes clearly within the provisions of this statute; and the operation of said machine is a misdemeanor.

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub, Judge.

Charles A. Couch was convicted of operating a slot machine and he appeals.

Affirmed.

Glen O. Morris, Jack Tellegen, and Charles W. Moss, all of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

JONES Judge.

The defendant was charged in the Common Pleas Court of Oklahoma County with the offense of operating a slot machine, jury was waived, the defendant was tried, convicted, and sentenced to pay a fine of $50 and costs, and has appealed to this court.

The information, omitting the formal parts, filed against the defendant is as follows:

"On the 20th day of June, A.D. 1939, in Oklahoma County, State of Oklahoma, Charles A. Couch whose more full and correct name is to your informant unknown, then and there being did then and there wilfully, unlawfully and wrongfully commit the crime of operating a slot machine in the manner and form as follows, to-wit:

That is to say, the said defendant in the county and state aforesaid, and on the day

and year aforesaid, then and there being, did then and there wilfully, unlawfully, and wrongfully set up, operate, conduct and permit to be set up, operated and conducted in and about his place of business, to-wit:

John Brown's Cafe at 909 North Eastern in Oklahoma City, said county and state, he the said defendant then and there being the operator of said John Brown's Cafe, a certain slot machine, to-wit:

A Five Ball Marble Board Slot Machine No. 4742 for the purpose of having and allowing the same to be played by others for money, property, tangible or intangible, coin, currency, checks, chips, tokens, credit, amusement and representatives of value, or thing of value, contrary to the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma."

The evidence introduced by both the state and the defendant was uncontradicted, and in brief was as follows: The defendant was, and had been for sometime prior to June 20, 1939, the owner and operator of a cafe in Oklahoma City; that at the time involved, and for some period prior thereto, the defendant owned a five ball marble board machine, which was located in his said cafe. That on the date in question one H. E. Shepherd came into the cafe while two officers were there and inquired of the defendant as to whether he could receive anything for playing the marble machine, to which the defendant replied that the machine was for amusement only, and that no tokens, merchandise, or anything else would be paid by the defendant to induce the playing of said machine; that the said Shepherd did at that time place a nickel in the slot of said machine and did operate and play said machine by shooting five steel balls.

A picture of the machine was identified and attached to the case-made as an exhibit. The officers testified that the machine was operated on the same principle as any other marble board which they had seen. That it was equipped to operate electrically; and that when the steel balls, which were shot with a plunger, came in contact with certain spools, an electrical flash resulted, and a corresponding rabbit or duck at the back board would fall. In order to operate the machine, you place a nickel in the slot, push a plunger, and five steel balls come up in a chute on the side of the board. There was a pin on the machine which, if struck, would give a free game or one ball, but the mechanism to that pin was not connected; that when the steel ball is shot, it may bounce off on one pin and hit another or run down the board without hitting anything. That the number of ducks or rabbits which are knocked down depends some upon skill, but mostly upon chance.

The statute under which this action was commenced is House Bill No. 125, Chap. 15, art. 3, p. 8, Session Laws of Oklahoma, 1939, 21 Okl.St.Ann. § 964 et seq., enacted by the Seventeenth Legislature. This statute was before this court for consideration, and was discussed at length and thoroughly analyzed in an opinion by Judge Doyle in the case of Ex parte Davis, 66 Okl.Cr. 271, 91 P.2d 799.

Said act provides:

"Section 1. That, for the purpose of this Act, 'slot machine' is defined to be:

First: Any machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically or manually, and which can be played or operated by any person by inserting in any manner into said machine, instrument, mechanism or device, a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value; and

Second: Any machine, instrument, mechanism or device that operates or may be played or operated mechanically, electrically, automatically, or manually, and which can be played or operated by any person by paying to or depositing with any person, or by depositing with or in any cache, receptacle, slot, or place a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value.

Section 2. That for the purposes of this Act, 'a thing of value' is defined to be any money, coin, currency, check, chip, token, credit, property, tangible or intangible, amusement or any representative of value or any other thing, tangible or intangible, calculated or intended to serve as an inducement for anyone to operate or play any slot machine or punch board."

It is the contention of the defendant that the amusement referred to in section 2 of the above act as a thing of value must be given the same construction as the words "money" "coins", "checks", etc., and that where it is shown by the...