Painter v. State
| Decision Date | 25 January 1932 |
| Citation | 45 S.W.2d 46,163 Tenn. 627 |
| Parties | PAINTER v. STATE. |
| Court | Tennessee Supreme Court |
R. F Painter was convicted of unlawfully keeping and exhibiting a gaming device, and he brings error.
Affirmed.
W. T Kennerly and H. H. Clements, both of Knoxville, for plaintiff in error.
W. F Barry, Jr., Asst. Atty. Gen., for the State.
Painter was charged by indictment with unlawfully keeping and exhibiting a gaming device, a slot machine, at which persons played and gambled for checks and chips of value. Judgment of conviction imposed upon him a fine of $10, from which he has appealed in error.
The single question presented is whether the machine in question is a gaming device, within the prohibition of the statute, section 6805 of Shannon's Code (all editions). The section provides: "If any person encourage or promote, aid or assist, the playing at any game, or the making of any bet or wager, for money or other valuable thing, or keep or exhibit any gaming table or device for gaming, he is also guilty of a misdemeanor."
Section 6819 of Shannon's Code directs that all laws made for the prevention or suppression of gaming shall be construed as remedial and not penal statutes.
The machine here involved is a mint-vending machine, which, in addition to delivering a package of mints for the customer's coin, may emit the checks or chips described in the indictment. The number of such checks the customer will receive for each coin deposited, if any, is controlled by the interior mechanism of the machine, and varies from two to twenty. Each operation results in the appearance of a combination of symbols which, by reference to a printed legend on the front of the machine, represents one of the familiar plays of the game of baseball, a base hit, a base on balls, a home run, an out, etc. Continued operation by two customers would enable them to play an imaginary game of baseball as opponents. A demonstration before the jury presented the Attorney General and a witness, operating the machine alternately, as opposing teams. A picture of a baseball field on the machine is equipped with an indicator to enable the player to record the cumulative result of his successive plays. This result is not entirely controlled by the mechanism, it being possible for a frequent operator to develop skill in the play. A representative of the manufacturer, witness for Painter, testified: Later he was asked by the court: "Did I understand you to say a person could become skillful enough to catch the character that he wants to each time?" His reply: "Yes, that is possible."
The checks, of which the customer purchasing a package of mints may receive two or twenty, or some intermediate number, have no intrinsic value. They are delivered to him for the sole purpose of enabling him to operate the machine in playing the game of baseball as described. No mints are delivered for checks; they are not redeemable for merchandise or cash; and they may not be retained by the customer.
The opinion of this court in State v. McTeer, 129 Tenn. 535, 167 S.W. 121, demonstrates the illegality of this method of merchandising, unless it can be said that the checks issued by the machine are of no value, and that therefore the lure held out to the public to purchase the mints is not a "thing of value."
The checks are but tokens of the thing acquired by the customer who draws them. The thing received is the right to operate the machine for whatever amusement the playing of the game will afford. It is a right not extended uniformly to all customers of the store in which the machine is displayed, but only to those who purchase mints, and to them only according to chance and contingent fortune.
The machine, exhibited to us with the record, obviously required the expenditure of a considerable sum of money in its manufacture. The manufacturer's agent who testified in the case represents his employer to be a company of several million dollars capital, manufacturing this and similar machines on a large scale. They are not sold, but are leased or licensed for use in the sale of mints sold to the exhibitor by the owner of the machine. The agent was asked if the machine is effective to "stimulate and promote" the sale of the mints, and replied: "Yes, it does, just so much that we find it more practical to sell our merchandise this way rather than spend hundreds of thousands of dollars in advertising."
It occurs to the writer that this testimony of the manufacturer's agent answers the inquiry most material to this appeal. The right to operate the machine for the amusement of the customer is considered of sufficient value by the public, that their purchase of the mints is as greatly stimulated and promoted by the chance of receiving the checks as it would be by the expenditure of thousands of dollars in advertising the quality of the mints as merchandise. If this be true, what is it that the customer buys for his coin but the chance to receive tokens which will entitle him to operate the machine in the play? And particularly must this be true of the player, engaged in such a contest as was demonstrated before the jury, who finds his checks exhausted with his indicator...
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State v. Wiley
... ... holdings from other jurisdictions in cases involving ... mint-vending machines identical to or substantially the same ... as the machine in State ex rel. Manchester v. Marvin, supra, ... are: Howell v. State, 184 Ark. 109, 40 S.W.2d 782, cites ... State ex rel. Manchester v. Marvin; Painter v. State, 163 ... Tenn. 627, 45 S.W.2d 46, 81 A.L.R. 173, cites [232 Iowa 446] ... State ex rel. Manchester v. Marvin; Heartley v. State, Tenn ... Sup., 157 S.W.2d 1; Jenner v. State, 173 Ga. 86, 159 S.E ... 564; State v. Mint Vending Machine, 85 N.H. 22, 154 A. 224; ... State v. Baitler, ... ...
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State v. Abbott
... ... for and received is actually the right to operate the machine ... an additional time or times, and not the token which ... represents that value. We think the position here taken is ... borne out by authorities in other jurisdictions. Painter ... v. State, 163 Tenn. 627, 45 S.W.2d 46, anno. in 81 ... A.L.R. 173, 174; Gaither v. Cate, 156 Md. 254, 144 ... A. 239, 244; Rankin v. Mills Novelty Co., 182 Ark ... 561, 32 S.W.2d 161; State ex rel. v. Marvin, 211 ... Iowa 462, 233 N.W. 486; Harvie v. Heise, 150 S.C ... 277, 148 ... ...
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Commonwealth v. Rivers
...that the allurement of something for nothing was attendant, that each token was a ticket to part of the game, and, citing Painter v. State, 163 Tenn. 627, 632, to the that a "thing of value" to be the subject of gaming may be "any" thing affording the necessary lure to indulge the gambling ......
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Mackay v. State
...the machine. In these respects, the operation or possession of the machine clearly violates the statute in question." In the case of Painter v. State, supra, it is said [page "The use of machines of the character here involved in the sale of merchandise is a direct effort to arouse and expl......