State v. Johnson

• Decision Date: 01 February 1919
• Docket Number: A-2849.
• Citation: 177 P. 926,15 Okla.Crim. 460
• Parties: STATE v. JOHNSON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

177 P. 926

15 Okla.Crim. 460

STATE v. JOHNSON.

No. A-2849.

Court of Criminal Appeals of Oklahoma

February 1, 1919

Syllabus by the Court.

A slot machine which delivers an article, the sale price of which is the coin deposited in the machine, and in addition thereto sometimes delivers certain trade checks ranging in quantity and value from 2 to 20 times the value of the coin deposited and also indicates before each play what the machine will deliver on that particular play, but does not indicate what will be delivered on any subsequent play, is prohibited from being set up and operated in a place of business under sections 4 each of chapter 128, Session Laws 1913, and chapter 26, Session Laws 1916.

Appeal from County Court, Coal County; C. M. Threadgill, Judge.

G. A Johnson was acquitted in the county court of Coal county of the offense of setting up and operating a slot machine in violation of law, and the State appeals on a reserved question of law. Question decided in favor of the State.

S. P Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and G. T. Ralls, Co. Atty., of Coalgate, for the State.

MATSON J.

This is an appeal taken by the state of Oklahoma from the county court of Coal county upon a question of law reserved by the state for decision by this court in the trial of one G. A. Johnson, who was charged by information as follows:

"That said G. A. Johnson did willfully, knowingly and unlawfully set up and operate in his place of business on the Main street and at the corner of Main street and Ohio avenue, Coalgate, Oklahoma, a slot machine for the purpose of having the same and allowing the same to be played by others for money, property, checks, credits and representatives of value contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."

At the conclusion of the state's evidence, the court gave the jury a peremptory instruction to acquit the defendant, because the evidence was insufficient to sustain a conviction. To this action of the court the state reserved an exception, and here contends that the trial court erred in instructing the jury to acquit the defendant; the state contending that the crime charged in the information was clearly made out by the state's evidence.

The statute upon which this information is based reads as follows:

"Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted in or about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be played by others for money, property, checks, credits or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars; or by imprisonment in the county jail for a term of not more than thirty days, or by both such fine and imprisonment." Section 4, c. 128, Session Laws 1913; section 4, c. 26, Session Laws 1916.

The evidence on the part of the state to support the charge was brief, four or five witnesses being introduced, whose testimony was in effect the same as that of the witness Albert Collier, which is as follows:

"Q. Your name is Albert Collier? A. Yes, sir.

Q. You live in Coalgate, Okl.? A. Yes, sir.

Q. How long have you lived here? A. Three years.

Q. What is your occupation? A. Carpenter.

Q. Do you know the defendant, G. A. Johnson? A. Yes, sir.

Q. How long have you known him? A. About three years.

Q. Do you know where he had a place of business in a little house on wheels down in front of the barber shop? A. Yes, sir.

Q. Were you ever in that little house? A. Yes, sir.

Q. When was that? A. I was in there often.

Q. Along about February, this year? A. Yes, sir.

Q. Will ask you what he had in that little building? A. Cigars, tobacco, chewing gum, cold drinks, slot machine.

Q. Did you play any on the slot machine? A. Yes, sir.

Q. What did you play the machine with? A. Nickels.

Q. What would you get? A. Chewing gum and trade checks.

Q. What was the most you could get for a nickel? A. Chewing gum.

Q. When you played, what did you get? A. Checks sometimes, and chewing gum every time.

Q. Did you play any checks? A. Yes, sir.

Q. Where did you get those checks? A. Out of the machine.

Q. What would you play to get checks? A. Nickels.

Q. How many would you play to get checks? A. From 2 to 20.

Q. How many did you get at a time? A. Don't think I ever got more than 4.

Q. Would you always get checks? A. No, sir.

Q. The checks you got by playing, what did you do with them? A. Put them back in the machine, and sometimes you would trade them.

Q. What would you buy? A. Tobacco and cigarettes.

Q. That was here in Coalgate, Okl.? A. Yes, sir.

Q. And the defendant, Arthur Johnson, had charge? A. Yes, sir.

Q. He was there when you were playing? A. Yes, sir.

Q. Did you see any one else playing there that day? A. I couldn't say.

Q. He was running openly? A. Yes, sir.

Cross-examination by Mr. Trice:

Q. What date was that? A. I couldn't say.

Q. You couldn't say whether it was February, March, or April? A. Along in the winter some time.

Q. When you put nickels in the machine, you could tell what you were going to get before? A. Yes, sir.

Q. Would you always get a package of chewing gum? A. Yes, sir.

Q. Could you tell the brand? A. No, sir.

Q. Was it Spearmint? A. I believe it was.

Q. When you put nickels in the slot machine, you would get a package of chewing gum? A. Yes, sir.

Q. Could you tell how many trade checks you were going to get? A. Yes, sir.

Q. Sometimes you wouldn't get any trade checks? A. No, sir.

Q. That was the only kind of machine you saw in there? A. Yes, sir; in operation.

Redirect by Judge Ralls:

Q. What you played and wouldn't get checks, what was your object in playing? A. Chewing gum.

Q. When you got checks, you wouldn't get chewing gum? A. No, sir; I could tell whether I was going to get checks, and I could tell every time what I was going to get.

Q. Then what was your object in playing? (Objected to by the defendant. Objection sustained.)

Q. When the indicator would indicate that you would not get any checks by playing, what was your object in playing at that time? A. Well, my object in playing was to get the indicator in shape so that I could get some.

Q. Now, if the indicator showed you were not going to get checks, would you keep up playing? A. That was my idea; I could play until I went broke.

Q. Were you playing the machine for-when the machine showed you were not going to get checks the next turn, why would you continue playing? (Defendant objects as incompetent, irrelevant, and immaterial. Objection sustained.)"

The state's evidence in effect established that the defendant set up in his place of business and conducted a certain slot machine, which was played by certain of his customers by placing nickels in a slot which had the effect of operating the machine, and at each operation the person playing same would get a package of chewing gum, and at some times, in addition to the chewing gum, the operator would get from 2 to 20 trade checks of the value of 5 cents each in trade at that place. These trade checks could be used either in purchasing cigars, tobacco, cigarettes, cold drinks, or chewing gum which defendant kept at his place for sale, or else they could be played back into the machine; the testimony being that the trade checks would operate the machine as well as nickels.

The question here presented is:

"Is a slot machine wherein the operator or person playing same receives, at each play or operation, the equivalent of the amount invested in property (chewing gum), but at some operations in addition thereto receives certain trade checks ranging in value according to the number received by the play from ten cents to one dollar, prohibited from being conducted under the terms of the foregoing statute; the evidence also showing in this connection that before the play is started the operator can tell from the machine's index exactly whether he will receive only chewing gum or also trade checks in addition thereto on the play, but not what the index may show for any subsequent play?"

The trial court held that such a state of facts was insufficient to sustain a conviction under the statute, instructing the jury to return a verdict of not guilty against the defendant, which was done, and the defendant discharged.

By enacting the statute against slot machines, the Legislature intended to prohibit the setting up, operating, or conducting of any kind of a slot machine for the purpose of having or allowing same to be played by others for money, property, checks, credits, or any other representative of value. It was intended to prohibit the placing of such a machine in any place of business as an invitation to the public to play same for money or other property; to invite the public generally to take a chance of getting something for nothing.

The reason of the trial court for holding the evidence in this case insufficient does not appear from the record. The court sustained the motion to direct a verdict of not guilty, merely commenting that it was the opinion of the court that "the testimony is insufficient to make out an offense against the defendant under the law." It is evident to this court that, in directing a verdict of not guilty in this case under the facts proven by the state, the trial court erred.

In the case of Ferguson v. State, 178 Ind. 568, 99 N.E. 806, 42 L. R. A. (N. S.) 720, Ann. Cas. 1915C, 172, the Supreme Court of Indiana held:

"A slot machine which delivers an article worth the coin deposited, and sometimes tickets for additional chances in addition thereto, indicates before each

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