Middlemas v. Strutz
| Decision Date | 01 August 1941 |
| Docket Number | 6778 |
| Citation | 299 N.W. 589,71 N.D. 186 |
| Parties | V. R. MIDDLEMAS, Appellant, |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. In order to constitute a game of chance, which is played for a consideration, a lottery under the provisions of Section 9660, Compiled Laws of North Dakota 1913 and Section 9674a1 Supplement to Compiled Laws of North Dakota, the prize or award which a player may win must be property or an interest in property.
2. The definition of personal property contained in the Penal Code (§ 10369, C.L. 1913) is sufficiently broad to include every statutory definition of personal property.
3. The exclusive right to operate an amusement device is property.
4. The playing of an amusement device, commonly called a pin ball machine which is played for a consideration and which offers to the player an opportunity, dependent chiefly upon chance to win the right to the extended free use of the device for periods of varying duration, is a lottery. Compiled Laws of North Dakota, § 9660.
Appeal from District Court, Burleigh County; Fred Jansonius, Judge.
Action by V. R. Middlemas against Alvin C. Strutz, as attorney general of the State of North Dakota, to recover possession of a device commonly referred to as a pin ball machine which had been seized by the defendant as a gambling apparatus. From a judgment in favor of the defendant, the plaintiff appeals.
Judgment affirmed.
Cameron & Cameron, for appellant.
Alvin C. Strutz, Attorney General, for respondent.
Burke, J. Burr, Ch. J., and Nuessle, J., and Hutchinson, Dist. J., concur. Morris, J., deeming himself disqualified, did not participate, Hon. Wm. H. Hutchinson, Judge of Third Judicial District, Sitting in his stead by request. Christianson, J. (dissenting).
Plaintiff brought this action in the district court of Burleigh county to recover possession of a device commonly referred to as a pin ball machine which had been seized by the defendant attorney general as a gambling apparatus. The judgment of the district court was in favor of the defendant and plaintiff has appealed from the judgment. All of the facts were stipulated at the trial of the case and the sole issue upon this appeal is whether operation or possession of the machine in suit is violative of North Dakota statutes prohibiting lotteries, gambling and the possession of gambling apparatus.
The statutes are as follows: Section 9660, Compiled Laws of North Dakota 1913.
Section 9661, Compiled Laws of North Dakota 1913.
Section 9674a1, Supplement to Compiled Laws of North Dakota 1913.
Section 9675, Compiled Laws of North Dakota 1913.
In order to play the machine, which we have under consideration, the player must first deposit a five cent piece in a slot provided for that purpose. The act of depositing the coin releases five metal balls which the player may elevate one at a time into playing position. The player then, by the use of a spring plunger projects the balls successively up an inclined plane. The course of the balls up the plane is controlled by a trough. Upon reaching the top of the plane the balls are released into a playing field down which they descend by force of gravity, bouncing willy-nilly among spring electrical contacts and other obstructions to the accompaniment of flashing lights and ringing bells. During the course of the play, the score made by the player, which is dependent both upon the particular contacts made by the balls and the order in which they are made, is registered mechanically in electric lights upon a score board at the top of the machine. If the player's score is sufficiently large, he receives as a prize or award, the right to continue to play the machine for an additional number of games, the exact number being determined by the extent to which his score exceeds the minimum prize score. Automatic provision is made for the playing of the additional free games. The number of games which the player has won is registered in lights upon the score board and the coin slot mechanism is released so that the machine may be operated without depositing additional coins until the free games are exhausted. The player receives no tickets, tokens or checks as evidence of his right to free games or as a means of operating the machine. He may not postpone the acceptance of his award for if he leaves the machine before using his allotment of free games, he surrenders the balance remaining unplayed.
It is conceded by the plaintiff, and we think properly so, that chance is the predominating factor in the play of this machine. It is thus apparent that the elements involved in the ordinary lottery or gambling transaction are present, viz., consideration, chance and a prize. However, in order to constitute the operation of the device a lottery under the statutes above quoted, it is essential that the prize or award which the player may win shall be property or an interest in property.
The definition of Personal Property in the Penal Code is found in § 10,369 Compiled Laws of North Dakota 1913. It reads as follows: "The term 'personal property' includes every description of money, goods, chattels, effects evidences of right in action, and written instruments by which any pecuniary obligation, right or title to property, real or personal, is created or acknowledged, transferred, increased, defeated, discharged...
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