State v. Jaskie

• Decision Date: 24 April 1944
• Citation: 245 Wis. 398,14 N.W.2d 148
• Parties: STATE v. JASKIE.
• Court: Wisconsin Supreme Court

245 Wis. 398

14 N.W.2d 148

STATE

v.JASKIE.

Supreme Court of Wisconsin.

April 24, 1944.

Error to review rulings of the Circuit Court for Milwaukee County; Otto A. Breidenbach, Judge.

Rulings held erroneous.

Prosecution of Floyd Jaskie under sec. 348.09, Stats., on the charge that he unlawfully and knowingly suffered and permitted a certain contrivance and device, to-wit, a pinball machine adapted, suitable, devised, designed and used for gambling purposes, to be set up, kept, managed and used for gambling thereon in a building occupied and controlled by Floyd Jaskie and his father, John Jaskie (who was originally included as a defendant, but subsequently discharged). Floyd Jaskie pleaded not guilty, and there was a trial by jury. It was proven upon the trial that in a tavern operated by John Jaskie there was set up an electrically connected ‘Four Roses' pinball machine. The machine was owned by the Beck Company, and kept at the tavern. On the day in question, the defendant Floyd Jaskie was tending bar in the tavern when two policemen in plain clothes entered and played the machine. Their testimony (which is disputed by defendant) was that one of them, after paying for and playing two or three games, obtained a winning score, which was shown by the appearance by electrical illumination of an invisible number ‘1’ on the lower part of the backboard of the machine, and that defendant made payment of one nickel ‘pay off’ to the officer. The officers then disclosed their identity to the Jaskies, told them they were ‘under arrest’, and the machine was disconnected and taken by the police in a truck to the Safety Building. The trial resulted in a jury verdict of not guilty; and thereupon the state, prior to any application for the discharge of the defendant, applied for leave to appeal under sec. 358.12(8), Stats., from the court's ruling adverse to the state in relation to certain evidence and certain instructions which the court had refused to give to the jury as requested by the state. The presiding judge granted permission to appeal, ahd the state obtained a writ of error in this court to review the court's rulings.

John E. Martin, Atty. Gen., and James J. Kerwin, Dist. Atty., and Brooke Tibbs, Sp. Asst. Dist. Atty., both of Milwaukee, for plaintiff in error.

Eugene J. Sullivan and Royal M. Galvin, both of Milwaukee, for defendant in error.

FRITZ, Justice.

Upon the trial and likewise on this review, pursuant to the writ of error obtained on behalf of the state under sec. 358.12(8), Stats., of certain rulings adverse on the trial, the principal issue raised is whether or not the pinball machine in question is, as a matter of law, under sec. 348.09, Stats., such a ‘device, scheme, contrivance or thing adapted, suitable, devised, designed or which can or shall be used for gambling purposes' that ‘any person who shall knowingly suffer or permit’ such machine ‘to be set up, kept, managed or used, or any gambling or betting therewith, thereon or by means thereof in any house, building * * * or premises by him owned, occupied or controlled shall be punished by imprisonment’ as provided in that statute. The learned circuit judge evidently concluded that the machine could not be held to be, as a matter of law, a ‘device, * * * contrivance or thing adapted, suitable, * * * designed, or which can * * * be used for gambling purposes'; and in accordance with that conclusion the court refused to instruct the jury in the respects stated in the following numbered requests submitted by the state, to-wit: (1) that ‘The pinball machine * * * was at the time charged, a contrivance and a thing’ adapted ‘for gambling purposes, and set up and kept in the tavern premises'.

‘2) Same as (1), except substitute ‘suitable’ for ‘adapted’.

‘3) Same as (1), except substitute ‘devised’ for ‘adapted’.

‘4) Same as (1), except substitute ‘designed’ for ‘adapted’.

‘5) Same as (1), except substitute ‘which could be used’ for ‘adapted’. ‘6) 7) 8) 9) & 10) same as 1) to 5) respectively, except add ‘as a matter of law’ at beginning of sentence.

‘11) In order to establish defendant's guilt it is sufficient for the state to prove that defendant knowingly suffered or permitted the pinball machine (exhibit one) to be set up or kept in the tavern premises.

‘12) It is not necessary for the state to prove that any pay off was actually made to either of the police offers in this case.

‘13) It is not necessary for the state to prove that any pay off was actually made to any person whatsoever.

‘14) It is not necessary for the state to prove pay off by anyone to anyone in connection with the play of the pinball machine (exhibit one).

‘15) If pinball machine * * * is so constructed as to be naturally used for gambling purposes, it is a construction, device, contrivance or thing which can be so used within the meaning of the statute.

‘16) The fact that the pinball machine * * * may be used for non-gambling purposes does not prevent it from being a construction, contrivance, device or thing, which is adapted, suitable, devised or designed or which can be used for gambling purposes.'

Instead, however, of instructing as thus requested by the state, the court charged that the only question for the jury to determine was, ‘Did the defendant * * * unlawfully and knowingly suffer and permit the pinball machine for gambling in that certain building’. Thus it evidently was also the court's conclusion that in order to establish a violation of sec. 348.09, Stats., the state had to also prove, in addition to the other essential elements, that the defendant actually suffered and permitted the gambling device to be used for gambling.

The machine in question is an exhibit in the case and its construction and mechanism, and the various purposes and the manner of operation and manipulation thereof were described and explained in detail by the testimony on the trial of an apparently competent and well-qualified witness. In addition to that testimony, we had the opportunity to observe during the course of the hearing a demonstration of the mechanism and operation of the machine by that witness...