State v. Langford, 11045.

• Decision Date: 03 October 1940
• Docket Number: No. 11045.,11045.
• Citation: 144 S.W.2d 448
• Parties: STATE v. LANGFORD et al.
• Court: Texas Court of Appeals

144 S.W.2d 448

STATE v. LANGFORD et al.

No. 11045.

Court of Civil Appeals of Texas. Galveston.

October 3, 1940.

Rehearing Denied November 14, 1940.

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

Proceeding by the State of Texas, through the District Attorney of Gregg County, against Dewitt Langford and others to have defendants appear and show cause why marble machines should not be destroyed as gambling devices under Vernon's Ann.P.C. art. 637. From an unsatisfactory judgment, the State of Texas appeals.

Reversed and remanded, with instructions.

Fred Erisman, of Longview, for appellant.

No brief filed for appellees.

MONTEITH, Chief Justice.

This action was brought by the State of Texas, through the District Attorney of Gregg County, against Dewitt Langford, who was alleged to have been the owner and operator of four described marble machines, and Red Purtle, Maxine Parker, Jeff Burgess and Ruel F. Brown, in whose places of business said machines were alleged to have been exhibited under his direction, for the purpose of having appellees appear and show cause why said machines should not be destroyed as gambling devices under Art. 637 of Vernon's Annotated Penal Code. Appellees answered by general demurrer and general denial.

In a trial before the court judgment was rendered that the property be returned to Langford. The court found in his decree that the machines in question were not gambling paraphernalia per se and that the State had failed to show that they had been used or exhibited for gambling purposes.

The record shows that the four marble machines in question were owned and operated by Dewitt Langford and were exhibited under his direction by the other four appellees. The machines consisted of a playing board in which there were a number of holes in which marbles used in playing the game could be lodged. The playing board was protected by a glass cover. Springs and resilient pins were driven into the surface of the playing boards for the purpose of diverting the marbles and causing them to roll in uncertain directions across the surface of the boards. The player in order to secure a marble with which to play the game was required to deposit a five-cent piece in a slot in the machine. When the coin was inserted in the slot the marble was released and was propelled by a plunger inside of the machine on to the playing board. The player could, through chance, obtain a designated number of free games by the marble striking a sufficient number of pins or falling into designated holes on the playing boards of said machines. If the score was not sufficiently high, no free games were won. It was possible to redeem the plays on each of said machines in cash or trade, but it was not shown that plays on any of the machines in question were so redeemed. Appellee Langford testified that he had directed the parties with whom said tables had been placed not to redeem plays on said machines in cash or trade.

Art. 637, Vernon's Annotated Penal Code, provides, in effect, that if upon a hearing before a justice of the peace or a county or district judge the property seized is found to be a gaming table or bank, or that it is used for equipment or paraphernalia for a gambling house, and was being used for gaming purposes, the judge shall order that the property be destroyed. Section No. 2 of said Article further provides that if the judge before whom the case is pending shall determine that the property seized is not gambling paraphernalia per se but that the same or any part thereof was being used as equipment or paraphernalia for a gambling house and was being used for gaming purposes, and that said property was capable of being used for some illegal purpose, he may, in his discretion, by order of the court declare the same confiscated and cause same to be delivered to the State of Texas.

Art. 619, Vernon's Annotated Penal Code, provides among other things that: "Any such table, bank, wheel, machine or device shall be considered as used for gaming if money or anything of value is bet thereon."

The controlling question to be determined in this appeal is whether or not free games won on the said machines constitute a thing of value within the meaning of said Art. 619, and thereby renders said machines gambling paraphernalia, tables or devices.

Appellant contends that free games won are things of value, and that since the undisputed evidence shows that the machines in question were exhibited as contemplated by Art. 623, Vernon's Annotated Penal Code, which provides that "The word `exhibited' is intended to signify the act of displaying the bank or game for the purpose of obtaining bettors", that said machines were gambling paraphernalia and that they should be ordered destroyed as such.

No brief has been filed in this court by appellees.

While we have been cited to no case of parallel facts decided by the courts of this state, and have found none, the courts of the State of Arkansas, under statutes similar in practically all respects to the Articles of the Penal Code in force in this state, under similar states of fact, have held a machine to be a gambling device where its operation is such that,...