Redd v. Simmons

• Decision Date: 13 April 1936
• Docket Number: 32195
• Citation: 167 So. 65,175 Miss. 402
• Court: Mississippi Supreme Court
• Parties: REDD v. SIMMONS

167 So. 65

175 Miss. 402

REDD v. SIMMONS

No. 32195

Supreme Court of Mississippi

April 13, 1936

(Division A.)

GAMING.

Evidence in suit to enjoin city police chief from seizing pin marble machines held to warrant trial court's finding that such machines were "gambling devices" prohibited by statute.

APPEAL from chancery court of Hinds county.

HON. V J. STRICKER, Chancellor.

Suit by Silas Redd against John E. Simmons, chief of police of the city of Jackson. From a decree of dismissal, complainant appeals. Affirmed.

Affirmed.

Lotterhos & Travis, of Jackson, for appellant.

On the point of skill pin marble game is comparable to golf billiards and other types of games. A person must keep in practice so as to have the proper touch. Some people acquire and maintain their skill better than others, the same as in billiards, table tennis, golf and other amusements. The skill necessary in the pin marble game is based largely on the laws of physics.

The issue for this court to determine is whether or not the appellant was entitled to an injunction restraining the defendant from seizing or interfering with the appellant's use of his property, to-wit, pin marble games, and from summarily destroying and breaking up said machines. The determination of the question of the propriety of the granting or refusing of the injunction necessarily involves a determination of whether or not these machines, as played, constitute in law, a gambling device.

Section 962 of the Code of 1930 makes it unlawful for a person to keep or be interested in games or gaming tables. That section of the code does not define what is a gambling device. No other section of the code that we have been able to find defines a gambling device.

Sections 924, 946 and 947 of the City Ordinances of the City of Jackson make it unlawful for a person to have in his possession a gambling device.

The following cases define a gambling device to be "Anything which is used as a means of playing for money or other thing of value so that the result depends more largely on chance than skill."

In re Lee Tong, 18 F. 253; M. C. v. State, 18; Ariz. 408, 161 P. 893; Moberly v. Deskin, 169 Mo.App. 072, 155 S.W. 842; People v. Jenkins, 138 N.Y.S. 449; People v. Engeman, 114 N.Y.S. 174; Ah Poo v. Stevenson, 83 Ore. 340, 163 P. 822; 27 C. J. 908, sec. 4.

A game of skill is one in which nothing is left to chance, and in which superior knowledge and attention, or superior strength, agility, and practice, gain the victory.

27 C. J. 969, sec. 5.

27 C. J. 969, sec. 7, lays down the criterion by which a game of skill is distinguished from a game of chance.

Clearly such a description of a game of chance as stated in Corpus Juris would not fit a pin marble game, for in the latter game judgment, practice, skill and adroitness play a very definite part in obtaining results. These elements predominate over any possible element of chance and so predominating, we submit that this game must be classed as a game of skill rather than a game of chance.

38 C. J. 286, sec. 1:17 R. C. L. 1222, sec. 10; Williams Furniture Co. v. Mc Comb Chamber of Commerce, 147 Miss. 649, 112 So. 579:38 C. J. 289, sec. 1.

Our court in the Williams Furniture Company case has squarely placed itself in line with authority obtaining generally that the element of a prize, a consideration, and chance must concur before the game is a gambling game or the machine whereon the game is played is a gambling device. This court has held that a game of billiards is not a game of chance. A game of billiards is similar to the pin marble game played on the machine involved in the case at bar. Essentially the two games are the same. therefore, the decision of this court in Wortham v. State, 59 Miss. 179, is an authority which supports the appellant's position in the case at bar.

State v. Gupton, 39 N.C. 271.

The following games, which by an analogy are helpful in determining the question before the court in this case have been judicially declared not to be games of chance, but rather games of skill: Not games of chance.--The following have been held not to be games of chance: (1) Baseball, Mace v. State, 58 Ark. 79, 22 S.W. 1108. (2) Billiards, Wortham v. State, 59 Miss. 179; Peo. v. Forbes, 52 Hun. 30, 4 N.Y.S. 757; State v. Gupton, 30 N.C. 271; Bell v. State, 5 Sneed (Tenn.), 507. (3) Burro, Reyes v. Martinez, 5 Philippine 402; Lichuaco v. Martinex, 6 Philippine 594. (4) Chess, State v. Gupton, 30 N.C. 271. (5) Dog races, Hirsh v. Molesbury, L. R. 6 Q. B. 130. (6) Draughts, State v. Gupton, 30 N.C. 271. (7) Horse races, Hatless v. U.S. Morr. (Iowa) 169. (8) Pin pool, State v. Quaid, 43 La. Ann. 1076, 10 So. 183, 26 A. S. R. 207. (9) Quoits, State v. Gupton, 30 N.C. 271. (10) Shuffleboard, State v. Bishop, 30 N.C. 266. (11) Shooting at turkeys, State v. DeBoy, 117 N.C. 702, 23 S.E. 167. (12) Shooting for beef, State v. DeBoy, 117 N.C. 702, 23 S.E. 167. (13) Shooting matches, State v. DeBoy, 117 N.C. 702, 23 S.E. 167. (14) Ten-pins, State v. King, 113 N.C. 631, 18 S.E. 169; State v. Gupton, 30 N.C. 271. (15.) The game, practiced in Md of fairs and charities, of voting with tickets purchased at fixed prices for candidates, of whom one in whose name the most tickets are voted is to receive some article which the whole number of tickets pays for, Dion v. St. John Baptist Soc., 82 Me. 319, 19 A. 825.

The game of pin marble, played upon the machine here sought to be condemned as a gambling device, is of recent origin, therefore the courts of last resort have not had the opportunity to pass upon the question as to whether or not the machines for use in playing the game, when used as herein set out, would constitute a gambling device. Therefore, it is necessary to resort to other similar games as judicially considered by other courts for light in solving this question.

The fact that a prize is given to the player making a certain score does not, of itself, constitute the act of the giving of the prize, or the chance to win the prize, a gamble so as to make the machine in question a gambling device.

11 Wharton's Criminal Law, sec. 1740.

W. E. Morse and John Burkett, both of Jackson, for appellee.

The case of Echols v. State, 66 So. 987, 108 Miss. 534, was a case in which dice were played for "High Dice," not as a gambling device, but "merely as a trade stimulant." That is the contention in the present case. In the Echols case a fee or sum of twenty-five cents was paid for the privilege, of rolling the dice and a person stood a chance of winning one dollar, or getting nothing. It was contended in that case that the players could have gotten something every time they rolled, but that they did not understand how to run it. The court held in that case that the contrivance there used was a gambling device.

Section 960, Code of 1930.

The testimony clearly demonstrated that minors were allowed to play on these machines, in fact the expert produced to the court was twenty-one years of age just two months prior to the trial of this case, and he, himself, stated that he had been playing constantly for the past fourteen months.

It is the same old racket under a different name. It is the greed and avarice of men seeking large profits and willing to take large chances.

We respectfully submit that the game having been demonstrated to the court below, the court having passed upon the fact as to whether it was a gambling device, that this case should be affirmed.

OPINION

Cook, J.

This is an appeal from a decree of the chancery court of Hinds county dismissing a bill of complaint filed by Silas Redd, appellant, against John E. Simmons, chief of police of the city of Jackson, appellee, seeking to enjoin the appellee from seizing and interfering with the operation of certain machines called "pin marble machines" which the appellee alleged to be gambling devices."

The bill of complaint alleged that the appellant was the owner of a large number of "pin marble machines" which were customarily leased to persons in the city of Jackson who operated them on a commission basis. A description of the machines, as set forth in the bill of complaint, is as follows:

"The machine itself consists of a painted box about 38 inches long by about 19 inches wide by about 10 inches deep set upon four legs resting upon the floor. One of the two sides of the greatest area uppermost. The upper, or top side of said box is of glass. The entire box is so set upon its supporting legs as that one of the short ends of the box (player end) is lower than the other short end. It is equipped that in order to play machine the player must stand at the lower short end of the box.

"Projecting through the left hand side of the lower, or player, end of the box is a coin slot lever into the slot of which a player may insert a nickel and obtain release of ten balls or marbles for consecutive play by thrusting the coin slot lever, with the nickel, forward into the machine. Projecting through the right hand side of the player end of the box is another lever which, at each thrust forward by the player will cause one of the released balls or marbles to be emitted through an opening into the marble way or alley hereinafter described, where it is ready for play. Projecting through the right hand side of the player end of the box, also, but above the marble emitting lever, is...