Kirk v. Morrison

• Decision Date: 25 January 1933
• Citation: 108 Fla. 144,146 So. 215
• Parties: KIRK v. MORRISON, Sheriff.
• Court: Florida Supreme Court

146 So. 215

108 Fla. 144

KIRK v. MORRISON, Sheriff.

Florida Supreme Court, Division A.

January 25, 1933

Original proceeding on the petition of John Kirk for a writ of habeas corpus directed to Angus Morrison, as Sheriff of Wakulla County, Florida.

Petitioner discharged conditionally.

COUNSEL

B. K. Roberts, of Tallahassee, for petitioner.

Raney Whaley, of Crawfordville, for respondent.

OPINION

PER CURIAM.

An affidavit was filed before the county judge of Wakulla county, Fla., in which it was charged that the defendant therein named, John Kirk, did a felony commit, in that he did then and there feloniously have, keep, exercise, and maintain a gambling device, commonly called a 'slot machine,' for the purpose of gaming or gambling.

In addition to the foregoing, it was alleged that the 'slot machine' involved was operated in a particular manner described in the affidavit as follows: The patron deposits a nickel in the slot, pulls a handle, turns a knob, and receives in every instance when a nickel is used, a five-cent package of mints for his nickel; the operation of the machine also involves the setting in motion of a device connected with it designed to give out, at occasional intervals certain brass tokens; the brass tokens given out do not have any cash, merchandise, or exchange value, but are so made that they may be used in the machine for the purpose of operating its mechanism for all purposes except the receipt of another package of mints or anything else of value; the operator for his nickel receives upon each operation of the machine, when money is deposited in it, the uniform and fair value of a package of mints with which the machine is kept loaded for the purpose of vending the same at the price of five cents per package; the operator is advised in advance of each operation by a card placed conspicuously on the front of the machine, just exactly what he will receive as the result of each operation; the brass tokens not having any cash, merchandise, or other value, and not being redeemable in any way, are offered as an inducement to sell mints, by giving to the mint purchaser, in certain occasional instances, two or more of such brass checks for the purpose of again operating the mechanism of the machine (apparently), for amusement purposes in seeing it operate without vending any mints.

Petitioner was arrested on a warrant based on the foregoing affidavit and seeks relief in this court by writ of habeas corpus, on the ground that what is alleged in the affidavit aforesaid does not amount in substance to a charge of violating section 7657, C. G. L., section 5499, R. G. S., which reads as follows:

'Whoever * * * has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus * * * for the purpose of gaming or gambling * * * shall be punished by imprisonment in the State prison not exceeding three years, or by fine not exceeding five thousand dollars.'

There is no law in Florida prohibiting the operation of 'slot machines' merely because they are slot machines. Slot machines per se are not unlawful, but they may be unlawful if designed to operate for the purpose of gaming or gambling. And slot machines may be so constructed as to constitute gambling devices per se, or they may become gambline devices by the manner in which they are actually used, although not intrinsically designed or constructed as gambling machines.

A 'slot machine' is a gambling device where its operation is such that the player in any event will receive something, but stands a chance to win something in addition. Where it is alleged that a particular slot machine is a gambling device, the gist of the offense is the use that is made of the machine by the players for the purpose of winning something of value according to hazard or chance in the machine's manner of operation. A 'slot machine' is a gambling device per se when it is soconstructed that in its ordinary operation it combines the element of chance with the inducement of being able to receive something of value for nothing by means of playing it according to directions. 27 C.J. 989; 12 R. C. L. 729, 730.

Section 7657, C. G. L., section 5499, R. G. S., supra, in making the offense therein denounced a felony, and severely punishable as such, contemplates that the gaming implements or apparatus therein referred to shall be such as may be played for money or 'other valuable thing.' As was said in Ponder v. State, 76 Fla. 526, 80 So. 311, and McBride v. State, 39 Fla. 442, 22 So. 711, the purpose of the particular statute now under consideration was not to prohibit the gaming or gambling itself, but was to prohibit the keeping, exercising, or maintaining or gaming tables, rooms, or gambling implements or apparatus, or the procurement, suffering, or permitting of any person to play for money or other valuable thing at any game whatsoever, whether before forbidden or not.

Section 7657, C. G. L., section 5499 R. G. S is broad enough to cover the keeping for gambling purposes of that class of 'slot machines' which may not be gambling devices per se, but which are procured, suffered, or permitted to be played for gaming or gambling purposes by any person for money or other valuable thing. That section also directly covers the keeping, maintenance, or exercising of 'slot machines' which are gambling devices per se, as well as the procurement, suffering, or permitting of others to operate such 'slot machines' as per se gambling...