Knowles v. O'Connor
| Decision Date | 24 September 1968 |
| Citation | 71 Cal.Rptr. 879,266 Cal.App.2d 31 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John KNOWLES, Plaintiff and Respondent, v. Joseph C. O'CONNOR, Defendant and Appellant. Civ. 8886. |
Joseph C. O'Connor, San Diego County Sheriff, appeals from a judgment after court trial directing him to return three coin-operated baseball type amusement devices to their owner, plaintiff John Knowles. The machines had been confiscated as violating San Diego County Ordinance section 37.201, or, alternatively, as violating California gaming laws (Pen.Code, § 330 et seq.).
Knowles sought to recover the machines in this action under Penal Code, section 335a, which gives the superior court jurisdiction over such a matter.
At trial it was stipulated the one machine received in evidence was representative of the impounded three. Testimony by a repairman demonstrated the workings of the machine and how it was operated. No testimony was offered by the Sheriff.
The court found the machines to be coin-operated amusement-type devices consisting of a rectangular glass enclosed box on legs, slightly elevated at the back. By pressing a button with a left hand finger the player causes a steel ball to be ejected from the center of the playing surface so it rolls down to a bat which is activated by pressing another button with a finger of the right hand. When struck the ball is propelled to the elevated rear of the box where it will either strike a card registering a 'single', 'double', 'triple', or 'home run', or, if the cards are missed, an 'out'. Runs are scored by combination of hits advancing a 'base runner' to home plate. Sufficient runs scored entitle the player to free games. Three outs end the game.
There are no bumpers or pins on the machines' playing surface. The ball is pitched at a constant pre-set speed to a bat which, when activated, moves at a constant speed. The number of runs needed to win free games and the speed of the bat could be varied but requires and internal adjustment.
The court found the machines to be games of skill where the score to be achieved varies only with the skill and dexterity of the player. The skill is in pressing the button to swing the bat at the right time to strike the ball. In other words the skill depends on the reflexes and timing of the player. The player receives nothing of value from the machines other than free games which are for amusement purposes only. The Sheriff concedes there is no evidence the machines were used for gambling.
Whether a particular game is one of skill or chance is largely a factual issue (Williams v. Justice Court, 230 Cal.App.2d 87, 97, 40 Cal.Rptr. 724).
Here the trial court's finding the machines are games of skill is supported by substantial evidence consisting of the representative machine and testimony of its workings and operation. Ganes of skill do not fall within the prohibition of the State gaming laws (Pen.Code, §§ 330b(4), 330.5).
The Sheriff contends, however, that coin-operated games of skill which offer a chance of free games are prohibited by San Diego County Ordinance, section 37.201. Insofar as pertinent here, that section defines prohibited machines as those which, after insertion of a coin, may be operated, 'and by reason of any element of chance Or of other outcome of such operation unpredictable by him', the user may win additional games. The question is whether that portion of the definition which we emphasize can fairly be construed as referring to games of skill.
The term 'games of skill' has a reasonably ascertainable meaning (In re Allen, 59 Cal.2d 5, 6, 27 Cal.Rptr. 168, 377 P.2d 280, 97 A.L.R.2d 1415). The term has been employed by the State Legislature in drafting amusement device legislation. Significantly, Penal Code, section 330b, defines a prohibited device as one which after inserting a coin may be operated, 'and by reason of any element of hazard or chance or of other outcome of such operation unpredictable by him', the user may become entitled to something of value or free games. While this is almost identical language to that appearing in the county ordinance, Penal Code, section 330b goes on to provide by using this language it is not intended to prohibit devices 'which are predominantly games of skill.' (Penal Code, § 330b(4).) This...
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