State v. Appley

• Decision Date: 02 November 1945
• Docket Number: 15777.
• Citation: 35 S.E.2d 835,207 S.C. 284
• Parties: STATE v. APPLEY.
• Court: South Carolina Supreme Court

35 S.E.2d 835

207 S.C. 284

STATE v. APPLEY.

No. 15777.

Supreme Court of South Carolina

November 2, 1945

J. Allen Lambright and C. Yates Brown, both of Spartanburg, for appellant.

Solicitor Sam R. Watt, of Spartanburg, for respondent.

STUKES, Justice.

This is an appeal from conviction and sentence for violation of section 1301-1 of the Criminal Code of 1942. It is, in part as follows: 'It shall be unlawful for any person, firm or corporation to keep on his, her, or its premises, or operate or permit to be kept on his, her, or its premises, or operated within this State, any vending or slot machine punch boards, pull boards, or other devices pertaining to games of chance of whatever name or kind, except automatic weighing, measuring, musical and vending machines which are so constructed as to give a certain uniform and fair return in value for each coin deposited therein, and in which there is no element of chance. Any person, firm, or corporation violating this section shall be subject to a fine of not more than five hundred ($500.00) dollars, or imprisonment upon the public works of the county wherein the offense is committed or in the State penitentiary for a period of not more than one (1) year or both fine and imprisonment, in the discretion of the court: provided, that this section is also intended to prohibit all vending, slot machines, punch boards, pull boards, or other devices pertaining to games of chance, that display different pictures, words, or symbols, at different plays, or different numbers, whether in words or figures, or which deposit tokens or coins at irregular intervals, or in varying numbers to the player or in the machine.'

Additional subsections provide for the seizure of such devices and summary destruction. The devices involved in this prosecution are described in the record as pin-ball machines and no question is made but that they are illegal. See in this connection, Alexander v. Martin, Sheriff, 192 S.C 176, 6 S.E.2d 20 Alexander v. Hunnicutt, Sheriff,

196 S.C. 364, 13 S.E.2d 630.

Vaughan Cannon, who testified for appellant, is the owner of Cannon Music Store of Asheville, North Carolina, with a branch operating under the same name in the city of Spartanburg, of which latter the appellant is the manager. Mr. Cannon testified that he has a contract with Camp Croft, a United States military reservation near Spartanburg, whereunder he supplied the camp with pin-ball machines. His brother, who also testified, manages the business at the camp. On March 4, 1945, Cannon, the owner, shipped seventeen of the machines by common carrier truck from Asheville to Camp Croft, for which he received a bill of lading. The shipment arrived at the camp after the receiving warehouse was closed and after Cannon's representative had left the premises, and the machines were taken to Cannon Music Store in Spartanburg and left there. This was on a Saturday afternoon and on Monday morning the Sheriff's officers, armed with a search warrant, entered the store and found and seized the machines. They were in varying degrees of disrepair and none was completely ready for operation.

Upon conviction, the defendant appealed upon exceptions which he states in argument raise the two following propositions which are quoted from his brief:

I. 'That the machines were not 'kept' in accordance with the meaning of the statute under which this indictment was brought and that the defendant had never 'kept' or operated same in violation of the code.'

II. 'That the machines in question were in interstate commerce from Asheville, N. C., to Camp Croft, S. C., and therefore in interstate commerce and not subject to the jurisdiction of the State Court.'

The difficulty with the first assignment of error is that the statute contains no requirement that in order to constitute a violation of it an objectionable machine must be kept for the purpose of operation. The 'keeping' is a violation in itself, set off in the law by the disjunctive 'or' from the separate crime of operation. Appellant relies on the North Carolina case of State v. Jones, 218 N.C. 734, 12 S.E.2d 292, in which an indictment was held fatally defective for failure to include an allegation that the defendant operated the gambling devices or kept them for the purpose of being operated. But the distinction between that case and this is quite apparent for the law under which that prosecution was attempted provided that the possession be 'for the purpose of being operated.' C.S.Supp.1924, § 4437(b).

On the other hand it has been decided by other courts, as here, that a statute which makes a crime of the 'keeping' of a gambling device means what it plainly says. It was held in an Illinois case that the mere keeping of a slot machine was an offense under the statute irrespective of whether it was kept for gambling purposes, the court saying: 'It was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices, or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not, otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction?' Bobel v. People, 173 Ill. 19, 28, 50 N.E. 322, 324, 64 Am.St.Rep. 64.

The following is quoted from 24 Am.Jur. 423: 'In some jurisdictions,...