State v. Fuller

• Decision Date: 30 April 1940
• Citation: 101 P.2d 1010,164 Or. 383
• Parties: STATE <I>v.</I> FULLER
• Court: Oregon Supreme Court

164 Or. 383

101 P.2d 1010

STATE

v. FULLER

Supreme Court of Oregon.

Argued March 26, 1940.

Affirmed April 30, 1940.

Gaming — Games of chance

1. The purpose of statute prohibiting possession or operation of games of chance is to prohibit use of slot machines, dart games, pinball games, and similar devices or games which are played for a prize given in the form of cash or merchandise to the winner, who is to be determined by chance in consideration of money paid by the players of the games for the chance of winning the prize.

Lotteries — Prohibition

2. The essential elements of games of chance are prize, chance, and consideration, and hence they are "lotteries" and are prohibited by constitution and statute.

Lotteries — Statutes — Construction

3. In statute prohibiting all games of chance such as slot machines, dart games, pinball games, and "similar devices or games", the quoted words were to be construed by the maxim noscitur a sociis, and when so construed they did not include a machine designated as "Western Baseball 1939", which was similar to pinball game but was played for amusement purposes only with no prize being given to player, since the machine was not a "lottery", the essential element of prize being absent.

                  What is game of chance, note, 60 A.L.R. 343. See, also, 24
                Am. Jur. 407
                  27 C.J., Gaming, § 149
                

In Banc.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

W.R. Fuller was charged with crime of having in his possession and operating a game of chance for profit and, from a judgment dismissing the information and discharging the defendant, the State appeals.

AFFIRMED.

Frank S. Sever and M.E. Tarshis, both of Portland (James R. Bain, District Attorney, of Portland, on the brief), for appellant.

Ralph B. Herzog and John F. Logan, both of Portland, for respondent.

RAND, C.J.

The defendant was tried and convicted in the district court for Multnomah county upon an information charging him with the crime of having in his possession and operating a game of chance for profit in violation of chapter 492, Or. L. 1937, and was sentenced to pay a fine of $25. From this judgment, he appealed to the circuit court where, by stipulation entered into between the district attorney and the attorney for the defendant, the state was permitted to amend the information and the defendant to withdraw his plea of "not guilty" and to demur to the amended information. Pursuant to said stipulation, an amended information was filed and the defendant demurred thereto upon the ground that it did not state facts sufficient to constitute a crime. The demurrer was sustained and a judgment was entered dismissing the information and discharging the defendant. From this judgment, the state has appealed.

The charging part of the information, as amended, is as follows:

"That said W.R. Fuller on the 15th day of February, A.D. 1939, in the County of Multnomah, State of Oregon, then and there being, did then and there unlawfully and wilfully possess, display, operate and play a...