State v. Bally Beach Club Pinball Machine

• Decision Date: 03 January 1956
• Docket Number: No. 955,955
• Parties: STATE of Vermont v. BALLY BEACH CLUB PINBALL MACHINE. STATE of Vermont v. BALLY ATLANTIC CITY PINBALL MACHINE.
• Court: Vermont Supreme Court

Page 876

119 A.2d 876

119 Vt. 123

STATE of Vermont v. BALLY BEACH CLUB PINBALL MACHINE.

STATE of Vermont v. BALLY ATLANTIC CITY PINBALL MACHINE.

No. 955.

Supreme Court of Vermont.

Jan. 3, 1956.

Frederick M. Reed, Deputy Atty. Gen., Rudolph J. Daley, State's Atty., Newport, for plaintiff.

Raymond L. Miles, Newport, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, CHASE and HULBURD, JJ.

HULBURD, Justice.

These are two cases which were consolidated, heard together, and disposed of in like manner below, the proceedings and evidence in each differing in no significant respect. In each we have an appeal from an order of destruction made by the Orleans Municipal Court of a certain pinball machine, so-called, which had been seized without warrant by a state police officer. The order of destruction and proceedings leading up to it are purportedly based on V.S. 47, § 8558.

The appellant, the owner of both machines, does not question their identity, nor that they were seized in a place of public resort, nor does he otherwise attack the validity of the destruction order except in one respect. He contends that the machines in question were not gambling machines as defined by section 8558 of the statutes and that there was no admissible evidence before the court from which it could properly so find.

Following the seizure, a hearing was regularly had to which the occupant of the place where the machine was found was duly summoned. The occupant did not appear, but the owner of the machines did through his attorney. At the hearing testimony was taken. After the evidence was all in, the court did not make detailed findings of fact. All that it did was to make the ultimate finding of fact as specified in the statute in these words: 'finding is hereby made that the above machines are gambling machines within the meaning of the Vermont Statutes and were seized in a place of public resort.'

Since the muncipal court in following the statute relative to seizure and confiscation of gambling machines was not dealing with a matter which entitled either party to a trial by jury, it was under no duty to make any finding of fact other than that prescribed by the statute in question. The general obligation in that regard, imposed by V.S. 47, § 2121 in connection with § 1465, was not applicable to a proceeding of this sort.

The question presented to us, therefore, is whether the ultimate finding of fact as made by the court below was fairly and reasonable supported by the evidence produced before it. The burden is on the appellant to produce a record from which error appears. Ricci v. Bove's Executor, 116 Vt. 335, 336, 75 A.2d 682.

Taking the case made against Bally Atlantic City Pinball Machine as a prototype, the record discloses that the machine in question was seized on April 19, 1955, by William A. Green, corporal in the State Police. At the confiscation hearing, the State called as a witness Robert H. Iverson, another corporal of the State Police, who was allowed to testify over the appellant's objection of 'immaterial' that on March 25, 1955, he and Trooper Richardson, also of the State Police, went to the Texaco station operated by one Richard Parker in Derby Line, Vermont, where they found the machine in question. They were not in uniform at the time. While waiting to have their car greased, they began playing the machine, and observed what it was like and how it operated. This was related to the court in the testimony of both Corporal Iverson and Trooper Richardson without contradiction on the part of any other witness. Their evidence was such that the court might reasonably find the following regarding the nature of the machine. It is an apparatus into which the player puts a nickel and he then can shoot five yellow balls to obtain a score. If the balls happen to drop into the right holes, he can win a free game. The machine is so constructed that the more nickels one puts in before starting to play the better the odds are likely to be. The odds at which the device is operating register on a backboard attached to the machine. These odds are not selected by the player; the machine does that. Sometimes one nickel put in will give good odds; other times 'it takes a lot of money' to build them up. The higher the odds one has before he starts to play, the more free games he will win, if he happens to get the right balls in the right holes. As one wins one or more free games, their number is registered on the backboard. Once free games have been won, the player does not have to insert nickels to play the machine until the free games have been exhausted. As each free game is played, it is subtracted automatically on the backboard. But the device is not so constructed that the free games can only be used up by further play. It is so designed that if the player decides not to use up his credit to the number of free games showing on the backboard, and prefers instead to receive the cash they represent, the person in charge of the machine by reaching underneath it may push a button which cancels all free games off the board. So far as appears in the evidence, this feature of the machine is designed to be used, and has no other function except to permit the free games to be converted into cash. Thus the prize of free games is by the machine itself made readily convertible into money. The witnesses testified that some of the free games won by them they took in play and some were cancelled off by the attendant by pushing the button as stated and paying them five cents for each free game so cancelled.

Corporal Green of the State Police who seized this machine and instituted proceedings did not claim that he had played it or had seen it operated, but the appellant conceded that it was the same machine which Corporal Iverson and his fellow trooper had observed and operated. As we stated earlier all of Iverson's and Richardson's testimony was received against the appellant's objection that it was immaterial. The question before the court was not whether the machine was taken in the act of gambling, but whether or not it was a gambling machine within the statute. The testimony of Iverson and his associate was all material to the determination of the nature of the machine and clearly admissible. Since it was conceded to be the same machine complained against, it was proper for the court to take the evidence in order to learn what manner of machine it was. Hunter v. Mayor and Council of Township of Teaneck, 128 N.J.L. 164, 24 A.2d 553.

When, in fact, a machine is a gambling machine, its possession contrary to the statute becomes illegal whether it is operated or not. See on this point, Hurvich v. State, 230 Ala. 578, 162 So. 362.

There is no requirement that the seizing officer see the machine in operation.

Before going further it may be well to have before us the language of the statute involved. We are concerned here with only the last two subdivisions of section 8558; the first subdivision could not apply to the problem under consideration. If the machine in question is not one described and defined in either subdivision 'II' or 'III', then it was...