State v. Davis

• Decision Date: 08 April 1967
• Docket Number: No. 44516,44516
• Citation: 426 P.2d 143,198 Kan. 509
• Parties: STATE of Kansas Appellee, v. Billie R. DAVIS, Appellant.
• Court: Kansas Supreme Court

Page 143

426 P.2d 143

198 Kan. 509

STATE of Kansas Appellee, v. Billie R. DAVIS, Appellant.

No. 44516.

Supreme Court of Kansas.

April 8, 1967.

Syllabus by the Court

The record in a criminal prosecution for violation of K.S.A. 21-915 is examined, and it is held: The evidence was insufficient to uphold defendant's conviction of violating the above statute in operating 'slot machines' as more fully set out in the opinion.

Walter F. McGinnis, El Dorado, argued the cause and Allyn M. McGinnis, El Dorado, was with him on the brief for appellant.

Darrell G. Mitchel, County Atty., argued the cause and Robert C. Londerholm, Atty. Gen., and Raymond A. Overpeck, Deputy County Atty., were with him on the brief for appellee.

FROMME, Justice.

The defendant, Billie R. Davis, was steward and secretary of the El Dorado Aerie of the Eagles Lodge. He was tried and convicted on three felony counts under K.S.A. 21-915. He was sentenced to the penitentiary on each count for a period of one to five years. The sentences were to run concurrently.

In count one of the information it was charged defendant feloniously set up and kept certain gambling devices, to-wit: slot machines. In count two it was charged defendant feloniously did permit a person to bet and play upon these gambling devices, either on the side of or against the keeper of the slot machines. In the third count it was charged that defendant feloniously did keep a room and place (Eagles Lodge) to which persons were accustomed to resort for the purpose of gambling.

The defendant relies upon ten specifications of error to secure a reversal, including insufficiency of the evidence to sustain the verdict. It is therefore necessary to set forth the facts in some detail. The Fraternal Order of Eagles is an organization governed by a written constitution and by-laws and having local 'Aeries' or lodges in various cities of this state. The El Dorado Eagles Lodge had been in existence for over sixteen years and maintained club rooms on the second floor of a building located at 115 1/2 West First Street in the city of El Dorado. The club was managed or governed by a board of trustees who had control of the lodge. The Eagles' lodge rooms at El Dorado covered a portion of the second story of the building and consisted of a dance area, a bar area, a game room, an office and kitchen facilities. The game room was located west of the bar area.

The defendant moved to El Dorado in July 1964 and was employed by the trustees of the lodge as steward and secretary. He worked for the lodge for seven months until an injunction was obtained and the lodge was closed. During this time he was paid a set monthly salary, carried keys to the premises, kept the club open, waited on members, served them beer or 'set ups' if they brought their own bottle, and spent most of his time behind the bar or cleaning the premises. An officer or trustee of the lodge was usually present. The club rooms were not open to the public. The officers could admit guests and club members were allowed free access at all times.

Pursuant to vote of the trustees slot machines were installed in the game room the latter part of July 1964 and in October agents of the Internal Revenue Bureau together with local police officers searched the premises and confiscated four slot machines. The following evening after an unrelated altercation at the lodge the defendant went to the police station and signed a statement concerning this altercation. The police officers then obtained permission from defendant to search the lodge rooms and they discovered more slot machines had been set up or installed on the premises. Defendant was advised by the officers not to move the machines. Seven months later state and local officers obtained a search warrant and gained admittance to the club rooms by pushing a buzzer at the bottom of the stairway at which time the lock clicked and the door was free. They went upstairs and rang another bell. The defendant asked what they wanted and when they advised him of the search warrant he opened the door. The officers went directly to the game room and observed four machines. There were two people in the room and one was just leaving. The defendant was arrested and the slot machines were confiscated.

A police officer testified how these four slot machines operate. A coin of proper denomination is inserted and the person then pulls the handle which is spring loaded. The symbols rotate and when rotation ceases, if a certain combination of symbols turns up, the machine ejects money into a pay chute. All four machines were tested at the courthouse after confiscation. All of them operated. The quarter machine ejected three quarters and the nickel machine dispersed two nickels into the pay off chute when they were operated by the police officers.

Seven witnesses testified they had played these slot machines in the Eagles' lodge game room. Six witnesses were members of the club or wives of members. One witness was a paid investigator. She testified that when she arrived at the lodge on February 13, 1965, the defendant was leaving the club and he was not present while she observed the slot machines being played. The other witnesses testified that defendant was never in the game room of the lodge while they played the machines. He usually was tending bar in the next room. The lodge had other machines requiring change to operate which included a 'juke box' and a cigarette machine. Some of the witnesses obtained change from the defendant behind the bar which was in theroom adjacent to the game room. There was no testimony as to who set up these machines. The defendant testified he was not present in the lodge rooms when they were installed and did not see them set up. The license for these machines was obtained in the name of the lodge and the machines were owned by it. Keys to the premises were in the hands of five or six members. The president of the Eagles Auxiliary testified she conducted bingo games on the premises on Tuesdays. Cards cost a nickel and groceries were the prizes. She never talked to the defendant about slot machines or bingo games. The bingo equipment was owned by the ladies auxiliary. The defendant took no part in the bingo games.

At the close of the state's evidence the defendant presented and argued a motion to dismiss the action for insufficient evidence. The matter was again brought to the attention of the court on motion for new trial.

The statute under which prosecution was had, K.S.A. 21-915, is as follows:

'Every person who shall set up or keep any table or gambling device commonly called ABC, faro bank, EO, roulette, equality, keno, wheel of fortune, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property, or shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played at or by means of such table or gambling device, either on the side of or against the keeper thereof, or shall keep a place or room to be used as a place for playing any game of cards for money or property, or keep a common gaming house, or keep a house, room or place to which persons are accustomed to resort for the purpose of gambling, shall on conviction be adjudged guilty of a felony, and punished by imprisonment and hard labor for a term not less than one year nor more than five years.'

In State v. Brown, 118 Kan. 603, 236 P. 663, the court traced the history of the above statute and mentioned the changes made in the original act by the 1887 and the 1895 amendments. It noted that the prohibited acts were first made misdemeanors and later changed to felonies. The court indicated that the statute was directed at the professional gambler and the tools of his trade.

In 1903 the legislature passed a special act of similar import specifically naming the 'slot machine' as a gambling device and making certain prohibited acts misdemeanors.

K.S.A. 21-1507 is as follows:

'The operation of any machine or mechanism for gambling purposes, and particularly those machines commonly known and designated as 'slot machines,' in the operation of which cash prizes or other valuable things are given, shall be deemed a misdemeanor.'

K.S.A. 21-1508 is as follows:

'Every person who shall set up or keep in any room where merchandise is sold or kept for sale, hotel office, clubroom, saloon, joint, gambling house, brothel or other public or private place any slot machine or gambling device, devised and designed for the purpose of playing any game of chance for money or property, and shall induce, entice or permit any person to bet or wager any money or other things of value thereon, shall on conviction thereof be adjudged guilty of a misdemeanor under this act, and shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by impisonment in the county jail for a term of not less than thirty days nor more than one year.'

In State v. Greenwood, 186 Kan. 687, 352 P.2d 434, the court said:

'The gambling statutes of the state were exhaustively reviewed and considered in the opinion of the case of State v. Brown, 118 Kan. 603, 236 P. 663, which was a prosecution under the statute now appearing as G.S.1949, 21-915. It was said in the Brown case:

"It is an essential element of the offenses of setting up or keeping a gambling device, or of inducing persons to bet or play at a game thereon, that there be a keeper of such device, as that term is defined in R.S. 21-935.' (Syl. 2.)

'On the other hand, it seems clear that G.S.1949, 21-1508, must be construed to apply only...