State v. Baitler

• Decision Date: 21 July 1932
• Parties: STATE v. BAITLER.
• Court: Maine Supreme Court

161 A. 671

STATE

v. BAITLER.

Supreme Judicial Court of Maine.

July 21, 1932.

Report from Superior Court, Kennebec County.

Robert Baitler was charged with permitting gambling in a place under his control, and pleaded not guilty.

Judgment for the State, and case remanded for sentence.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

H. C. Marden, Co. Atty., of Waterville, for the State.

Brann & Isaacson, of Lewiston, for respondent.

DUNN, J.

This case was reported on an agreed statement of facts. The complaint charges, and the respondent denies, by his plea of not guilty, that he permitted gambling in a place under his control. R. S. c. 136, § 1. The determinative question is whether an automatic vending machine that he had in his restaurant, where patrons used it, was also a device producing things of value, by chance. R. S. c. 136, § 18.

In return for a nickel, the machine delivered, with certainty, to every customer, a package of candy mints, of equivalent retail value. At the same time, and by the same operation, metal tokens or checks became available to purchasers of the mints, not to all alike, but in varying number, from two to twenty, in accordance with the functioning of the contrivance.

These tokens had no monetary or commercial value. They were designed to be played back into the machine, one by one.

Putting back the tokens did not cause the vending or delivering of merchandise.

On the top of the machine, in an inclosed frame, bearing the legend "Play Ball," were three reels. When a token was inserted, the reels started to spin, thus beginning the playing of an imaginary, or, to use the expression of the agreed statement, symbolic, game of baseball. The element of skill on the operator's part was seemingly a factor, but the mechanics of the device itself were controlling.

In a broad sense, the player operated the reels—that is, he could stop them, as their respective combinations were presented to view, and thereby make a desired play in the game; he could start the reels again, if he had tokens. The number of plays was dependent upon the number of tokens. The player began, as has already been said, with not less than two nor more than twenty. At uncertain intervals during the game, the machine dropped additional tokens, in uncertain numbers. A token permitted a play; another token, another play. The play could go on only to the extent that tokens were dispensed and returned.

The tokens were things of value. They evidenced right to operate the "amusement." Each was a ticket to part of the game. "A 'thing of value' to he the subject of gaming may be 'any "thing" affording the necessary lure to indulge the gambling instinct.'" Painter v. State (1932) 163 Tenn. 627, 45 S.W.(2d) 46, 47.

There was, as hereinbefore stated, lack of uniformity in the number of tokens delivered. Some customers got more than others; some less. Tokens sufficient to play the game to a finish might be received; or might not. The same player could operate the machine, over and over again, with unlike results. The element of chance was always present. The allurement of something for nothing was attendant.

The use to which the machine was put classes it in the category of a gambling device. The following cases are in point or analogous: Painter v. State, supra; Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W.(2d) 161 (1930); Snyder y. City of Alliance, 41 Ohio App. 48, 179 N. E. 426 ...