Prickett v. State
| Decision Date | 24 November 1948 |
| Docket Number | A-10910. |
| Citation | 200 P.2d 457,88 Okla.Crim. 213 |
| Parties | PRICKETT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from County Court, Custer County; George C. Loving, Judge.
A. J Prickett was convicted in the County Court of Custer County of unlawfully setting up and operating a slot machine and he appeals.
Affirmed.
Syllabus by the Court.
1. 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.
2. 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.
3. The act prohibiting the playing or operating of a slot machine by inserting 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 other representative of value or any other thing is not an unreasonable exercise of the 'police power'. 21 O.S.1941 § 964 et seq.
4. The name give to a machine does not determine whether it comes under the classification of a slot machine as defined by statute, 21 O.S.1941 § 964 et seq., but that is determined by the manner and result of its operation.
5. Before a mechanical device may be considered a slot machine under statute, 21 O.S.1941 § 964, it much be shown that it is: First, a machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically, or manually; second, 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 thing of value; third, by which play or operation such person will stand to win or lose; fourth, whether by skill or chance, or both; fifth, a thing of value.
6. A 'thing of value' as that term is used in slot machine act is defined to be among other things 'amusement * * * or any other thing tangible or intangible, calculated or intended to serve as an inducement for anyone to operate or play.'
7. Where amusement, i. e. high score, received by player of coin operated mechanical device varies with each coin deposited in slot, which amusement is dependent chiefly upon hazard or chance, the operation of such coin operated machine is prohibited by slot machine statute. 21 O.S.1941 § 964 et seq.
8. Although a mechanical device might technically be a slot machine as defined by statute (21 O.S.1941 § 964 et seq.) the operation of such machine would not be illegal if the machine was such as could not be considered by any reasonable intendment as being dangerous or injurious to public order, safety, health, morals, or the general welfare of society.
9. A mechanical device commonly known as a marble or pin ball machine which was termed 'Marines at Play' and was operated by placing a nickel in slot, which released certain balls and by ejecting balls on board by pulling plunger and striking against the balls, which would then strike certain bumpers on the board, a higher score resulting by striking a certain number than by striking others, depending mainly upon the hazard or chance of the operator, was a slot machine, as defined by statute. 21 O.S.1941 § 964.
Falkenstine & Fisher, of Watonga, for plaintiff in error.
Mac Q. Williamson, Atty. Gen. and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
The defendant, A. J. Prickett, was charged by information filed in the County Court of Custer County with unlawfully setting up and operating a certain slot machine, to wit: a marble board * * * which setting up, operating and conducting was for the purpose of having and allowing said slot machine to be played by others for money, property, currency, checks, chips, tokens, credits and other representatives of value, etc.
Upon a trial to a jury, the defendant was found guilty and in conformity to the verdict of the jury, the defendant was sentenced to pay a fine of $100 and costs, and has appealed.
The evidence introduced by the State and defendant showed substantially the following facts: The defendant was engaged in the operation of marble or pin ball machines in several counties and had placed one of the machines styled 'Marines At Play' in the Veatch drug store at Custer City. This machine had been in the drug store for five or six weeks before it was seized by the Sheriff. During this period of time, the machine was played by both adults and minors.
Albert Gorshing, Sheriff of Custer County, testified that on April 9, 1947, he seized the machine in question after watching some high school kids play it at Custer City. The machine was exhibited to the jury and was described by the Sheriff as a marble board machine. The Sheriff identified a slip of paper which was pasted to the machine which reads as follows:
The machine was operated by depositing five cents in a slot for which the player received five balls. The machine was played by releasing a plunger against the ball and as the ball hit different bumpers on the face of the machine, it would light up the letter and cause the score made by the operator to mount.
The Assistant County Attorney testified at length concerning the operation of the machine. He placed a nickel in the slot in the presence of the jury, pushed a lever which released five balls and then showed how another lever fed one ball at a time into the slot where it is struck by the plunger operated by the player. He further showed how if the player was fortunate enough, that his ball went into a certain hole after striking the various bumpers on the machine, the ball would be returned to a player for a re-play. While the witness was playing the machine, one of his balls went in the furlough ball hole and was returned to the player. He further testified that the machine was made in Chicago and constructed so as to give automatic free games for certain scores, depending mostly upon the luck of the operator.
The defendant and his wife testified that defendant was the owner of the machine in question, and was operating similar machines in Blaine, Dewey and Custer Counties. He admitted that the machine was constructed so as to give automatic free plays for a high score, and also would give a free ball, but that he had pulled the electrical points apart at the time the machine was installed so as to prevent the free play or the free ball. When asked to explain how the machine when played by the Assistant County Attorney before the jury gave a free ball when the ball went into the furlough ball hole, he said that the mechanism of the machine had been changed after the machine was set up for operation; that the electrical points were so delicate that it might have been that the points were jarred when the machine was moved in handling by the Sheriff.
On re-direct examination, the defendant admitted that even with the electrical contact points pulled apart so as to prevent the furlough ball from automatically returning to the operator, that the ball would return for a free play if another ball was shot by the player and came in contact with certain bumpers, which bumpers when hit would release the furlough ball for a free play.
Despite the fact that this Court in the case of Couch v. State, 71 Okl.Cr. 223, 110 P.2d 613, specifically held that a five ball marble machine operated for amusement only came within the prohibition of the slot machine statute (Tit. 21 O.S.1941 § 970) the defendant contends that by reason of the subsequent opinion of this Court in the case of Delano v. State, 82 Okl.Cr. 258, 168 P.2d 659, that such machine is legal and its operation in the manner in which it was being operated did not constitute a violation of the law.
Prior to the passage of the 1939 act under which the prosecution was instituted, the law against the operation of slot machines was passed in 1916, was set forth in Section 2193 of the 1931 statutes, is now set forth in the statutes as Tit. 21 O.S.1941 § 944, and reads as follows: 'Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted in or about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be placed by others for money, property, checks, credits or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars; or by imprisonment in the county jail for a term of not more than thirty days, or by both such fine and imprisonment.'
Under the 1916 act, the ingenuity of man was constantly being used to try to comply with the...
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