State v. Hi-Jinks, Inc., HI-JINK
| Decision Date | 29 March 1962 |
| Docket Number | Nos. 29898-29910,INC,HI-JINK,s. 29898-29910 |
| Citation | 181 N.E.2d 526,242 Ind. 621 |
| Parties | STATE of Indiana, Appellant, v., an Indiana Corporation, William Reed, Appellees (two cases). STATE of Indiana, Appellant, v., an Indiana Corporation, Jack Eiser, Appellees (two cases). STATE of Indiana, Appellant, v., an Indiana Corporation, Harry Binnie, Appellees (two cases). STATE of Indiana, Appellant, v., an Indiana Corporation, Theodore Hawk, Appellees. STATE of Indiana, Appellant, v., an Indiana Corporation, Theodore M. Hawk, Appellees. STATE of Indiana, Appellant, v., an Indiana Corporation, Hiser Sales, Inc., an Indiana Corporation, Forrest Hiser, Sr., Forrest Hiser, Jr., Appellees (two cases). STATE of Indiana, Appellant, v., an Indiana Corporation, Lee Sales Company, Inc., an Indiana Corporation, Floyd E. Lee, Arnold Lee, Appellees (two cases). STATE of Indiana, Appellant, v., an Indiana Corporation; Forrest Hiser, Jr., its President; Floyd E. Lee, its Secretary-Treasurer; Max Seiss, its Vice-President; Theodore M. Hawk, a Member of its Board of Directors; Harry Binnie, a Member of its Board of Directors; Forrest Hiser, Sr., a Member of its Board of Directors; Arnold Lee, a Member of its Board of Directors; Lee Sales Company, Inc., an Indiana Corporation; Hiser Sales, Inc., an Indiana Corporation; Theodore M. Hawk, doing business as General Sales; Jack Eiser; William Reed; Appellees. |
| Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen., J., Byron Hayes, Pros. Atty., Allen Circuit Court, Robert J. Parrish, Chief Deputy Pros. Atty., Fort Wayne, for appellant.
Kennerk & Dumas, Arthur W. Miller, Clifford E. Simon, Jr. Hugh Kennerk, Fort Wayne, Daily & Daily, John H. Daily, Indianapolis, for appellees.
This is an appeal by the State of Indiana 1 from the decision of the Allen Circuit Court, Louis H. Dunten, Special Judge, sustaining motions to quash the indictments filed against the defendants (appellees here).
The appellees were charged by indictment with violations of Acts 1955, ch. 265, p. 713, being §§ 10-2329-10-2336, Burns' 1956 Replacement, as amended by Acts 1957, ch. 205, § 1, p. 425, being § 10-2330, Burns' 1961 Cum.Supp., known as the Indiana Anti-Gambling Law. Thirteen (13) criminal prosecutions in all were commenced under the indictments returned.
The appellees, individually and collectively, were charged with having committed on or about July 1, 1958, various violations of said Anti-Gambling Law, Supra, Relating to pinball machines, which charges are summarized as follows:
(1) Charged appellees with owning gambling devices, i. e., pinball machines, by the operation of which a right to money, credits, deposits or other things of value may be created, in return for a consideration, as a result of the operation of an element of chance and which said pinball machines, when operated and played, recorded right of replay.
(2) Charged appellees with engaging in professional gambling by owning and maintaining pinball machines in places accessible to the public which said pinball machines awarded recorded right of replay.
(3) Charged appellees with conspiracy to engage in professional gambling by the installation and maintenance of pinball machines in places accessible to the public which devices awarded recorded right of replay.
To each indictment the appellees filed the same amended motions to quash, charging primarily, that the statute [Acts 1955, ch. 265, Acts 1957, ch. 205] under which the indictments were returned, was unconstitutional.
On December 22, 1959, the special judge sustained the amended motions to quash in each case, being of the opinion that the statute was unconstitutional, and that the objection could not be avoided by a new indictment or affidavit; therefore, judgment was rendered discharging the appellees.
All of the appeals herein from the sustaining of the amended motions to quash have been consolidated for purpose of briefing and decision, since the same question is presented in each case, to-wit: The constitutionality of the criminal statute upon which the indictments were based.
In each appeal the assignment of error is, '[t]he Court erred in sustaining appellees' amended motion to quash the indictment herein.'
The sole question which has been briefed on these appeals, and, therefore, presented for consideration, is the legal effect of and interpretation of the phrase 'in any place accessible to the public' as used in the definition section of the Act. [Acts 1957, ch. 205, § 1, p. 425, being § 10-2330, Burns' 1961 Cum.Supp.] Paragraph three of this section provides as follows:
"Professional gambling' means accepting or offering to accept, for profit, money, credits, deposits or other things of value risked in bambling, or any claims thereon or interest therein. Without limiting the generality of this definition, the following shall be included: poolselling and bookmaking; maintaining slot machines, one-ball machines or variants thereof, pinball machines which award anything other than an immediate and unrecorded right of replay, roulette wheels, dice tables, or money or merchandise pushcards, punchboards, jars or spindles, in any place accessible to the public; and conducting lotteries, gift enterprises, or policy or numbers games, or selling chances therein; and the following shall be presumed to be included: conducting any banking or percentage games played with cards, dice or counters, or accepting any fixed share of the stakes therein.' [Emphasis supplied.]
It is the appellees' contention on appeal that the anti-gambling statute is unconstitutional and void because Acts 1957, ch. 205, § 1, p. 425, being § 10-2330, Burns' 1961 Cum.Supp., establishes an unreasonable and arbitrary classification in that it permits the maintenance, among other things, of pinball machines which award anything other than an immediate and unrecorded right of replay, at any place not accessible to the public, and makes the maintenance of such devices a crime in places accessible to the public. Such classification, according to appellees, is in violation of Art. 1, § 23, 2 and Art. 4, §§ 22, 3 23 OF THE CONSTITUTION OF THE STATE OF INDIANA4, and § 1 of the 14th Amendment to the Constitution of the United States. 5
The questions raised herein regarding the constitutionality of the anti-gambling statute in question were before this court in the cases 6 of Tinder, Pros. Atty., et al. v. Music Op. Inc. (1957), 237 Ind. 33, 142 N.E.2d 610, and Peachey et al. v. Boswell, Mayor, et al. (1960) 240 Ind. 604, 167 N.E.2d 48. The latter case was decided after the action of the trial court herein sustained the motions to quash. In the still more recent case of Murley et al. v. State (1960), 240 Ind. 655, 168 N.E.2d 205, this court dismissed without discussion contentions that certain sections of the Indiana Anti-Gambling Law were unconstitutional. It was simply held by the Court that the questions raised had been decided adversely to the appellants in Peachey et al. v. Boswell, Mayor, et al., supra, wherein such statute was held to be constitutional.
Appellees contend that under ...
To continue reading
Request your trial
-
Collins v. Day
...statement as to equivalence or separateness. See, eg., Murphy v. Schilling (1979), 271 Ind. 44, 389 N.E.2d 314; State v. Hi-Jinks, Inc. (1962), 242 Ind. 621, 181 N.E.2d 526; W.A. Barber Grocery Co. v. Fleming (1951), 229 Ind. 140, 96 N.E.2d 108; Vandalia R.R. v. Stillwell (1914), 181 Ind. 2......
- Trice v. State