State v. Nelson

• Decision Date: 04 November 1972
• Docket Number: No. 46636,46636
• Parties: STATE of Kansas, Appellant, v. Victor NELSON et al., Appellees.
• Court: Kansas Supreme Court

Page 841

502 P.2d 841

210 Kan. 439

STATE of Kansas, Appellant, v. Victor NELSON et al., Appellees.

No. 46636.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. The constitutional ban against lotteries is self-executing.

2. The construction of a constitutional provision is a judicial function and when exercised it becomes equally as controlling on the legislature of the state as the provisions of the constitution itself.

3. A legislative enactment in evasion of the terms of the constitution, as interpreted by the courts, is void.

4. The constitutionality of a statute should be considered in any action where it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, notwithstanding the failure of the parties to raise the constitutional question, failure to plead the question, or failure to present the question to the trial court.

5. Lottery, as used in the Constitution of the State of Kansas, has three elements; namely, consideration, prize, and chance.

6. Money paid to participate in any bingo game is consideration as that term is used in the judicial construction of the lottery provisions of our constitution.

7. The definition of the term 'consideration' contained in K.S.A.1971 Supp. 21-4302, with reference to 'bingo game or a game of chance with comparable characteristics' is void in that the definition is in conflict with the constitution as judicially construed by this court.

8. Statutory provisions which attempt to legalize bingo or the use and possession of slot machines are inconsistent with our constitution.

9. Constitutional provision against lotteries cannot be circumevented on the basis that the lottery is conducted for the benefit of, an organization excempt from tax under paragraphs 3, 4, 7, 8, and 10 of subsection (c) of section 501 of the internal revenue code of 1954.

10. The conduct of the defendants as set forth in the information was in violation of K.S.A.1971 Supp. 21-4307 and 21-4303. Vern Miller, Atty. Gen., argued the cause, and Edward G. Collister, Jr., Asst. Atty. Gen., and Mitchell H. Bushey, County Atty., were with him on the brief for appellant.

Robert V. Talkington, of Conderman & Talkington, Iola, argued the cause, and J. D. Conderman, Iola, was with him on the brief for appellees.

OWSLEY, Justice.

Criminal charges were filed in the district court of Allen County, Kansas, against each of three defendants for violating gambling laws. Following a trial to the court the district court ruled as a matter of law that the conduct of the defendants as set forth in the informations was not a violation of K.S.A. 1971 Supp. 21-4307 and 21-4303 in view of K.S.A.1971 Supp. 21-4302(1) (d), (2), (3), and (4). The state appeals.

The criminal charges originated as a result of a gambling raid conducted on June 18, 1971, in Iola, Kansas. On that date agents of the attorney general's office entered the Iola American Legion Club. Upon entering the agents observed two persons, defendants Hutton and Culver, in close proximity to five slot machines. Defendant Hutton appeared to be taking money from the coin return on one of the machines. Defendant Hutton admitted on direct examination that she had been playing the machines earlier in the evening. Culver, according to testimony of a special agent of the attorney general's office, had his hand on the handle of one of the machines, and released it after the agent entered the room. Culver testified that at the time the agents entered the room he was not playing the machines, but admitted that he had played the slot machines earlier.

Defendant Nelson was the action club manager of the American Legion Club. He admitted that he had custody of the slot machines and the keys to them, and that he had set up the slot machines that were identified during the testimony. It was testified that the funds from the above machines went to the club treasury. It was stipulated that the club was a Class A club, licensee of the Alcoholic Beverage Control Agency, and that the club was exempt from the Federal Income Tax under the provisions of the Internal Revenue Act.

Defendant Nelson was charged with possession of a gambling device, contrary to K.S.A.1971 Supp. 21-4307. Defendants Hutton and Culver were charged with gambling in violation of K.S.A.1971 Supp. 21-4303.

The trial court held as a matter of law that the conduct disclosed by the evidence and alleged as violation of the criminal laws of the state did not constitute a crime because of the so-called 'bingo' exception to the definition of gambling adopted by the 1971 Kansas legislature.

The parties agree there is only one issue presented in this appeal and that is whether the phrase 'bingo and games of comparable characteristics,' as it is used in K.S. A.1971 Supp. 21-4302, includes slot machines.

The new Kansas Criminal Code (Chapter 180, 1969 Session Laws) revised the laws of this state as to gambling. The former statutes, K.S.A. 21-915 through 21-936, and 21-1501 through 21-1510 approached gambling by prohibiting specific activities. The approach of the new code attempts to define prohibited conduct in a general way. The new code also amended the procedural provisions which were contained in the former law.

In the 1971 session the legislature amended the gambling laws in Chapter 111, Section 1 (now K.S.A.1971 Supp. 21-4302). Portions of the amendment pertinent to this appeal are as follows:

'(1) A 'bet' is a bargain in which the parties agree that, dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet does not include:

'(d) Any bingo game or a game of chance with comparable characteristics by or for participants conducted by an organization exempt from tax under paragraphs (3), (4), (7), (8) and (10) of subsection (c) of section 501 of the internal revenue code of 1954, as amended, if no part of the gross receipts derived from such activity inures to the benefit of any private shareholder, member or employee of such organization, except as compensation for actual expenses incurred by him in the conduct of such activity and provided that such game is conducted or operated by the officers, employees or members of such organization without compensation therefor other than that to which the officer, employee or member is entitled for the performance of his regular duties, and not by agreement or contract with any other person or organization for which any consideration or compensation is provided.

'(2) A 'lottery' is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance.

'(3) . . .

'As used in this subsection, the term 'consideration' shall not include sums of money paid by or for participants in any bingo game or a game of chance with comparable characteristics as defined by subsection (d) of this section and it shall be conclusively presumed that such sums paid by or for said participants were intended by said participants to be for the benefit of the organizations described in subsection (d) of this section for the use of such organizations in furthering the purposes of such organizations, as set forth in paragraphs (3), (4), (7), (8) and (10) of subsection (c) of section 501 of the internal revenue code of 1954, as amended.'

A slot machine is designed and utilized as a gambling device. We held in State, ex rel. Lanning, v, Myers, 152 Kan. 52, 102 P.2d 1028, that a slot machine is a gambling device per se. Other states have found slot machines to be lotteries. (State ex rel. Evans v. Brotherhood of Friends, (1952), 41 Wash.2d 133, 247 P.2d 787.) The judicial council notes appended to K.S.A.1971 S.A.1971 Supp. 21-4302 state a 'slot machine is probably the most familiar type of gambling device.'

Bingo may provide fun and amusement to adults and children without prizes and without consideration. Bingo as used in the above statutes, however, contemplates payment for the right to play and contemplates the award of prizes. This is apparent since the statute provides 'consideration shall not include sums of money paid' to take part in a bingo game and provides the money paid is for the benefit of tax exempt organizations. As we refer to bingo in this opinion it is labeled in accord with the statutes as a game for which a consideration is paid for the right to participate.

The defendants contend these statutes should be strictly construed against the state and when so construed a slot machine falls within the exception. Defendants also contend the burden of proof is on the state and the record in this case does not furnish a basis for convicting the defendants without engaging in speculation and extending judicial notice beyond its legal concept. Defendants further argue that bingo and slot machines are comparable in all characteristics except that bingo involves group participation while the use of a slot machine is a lone wolf operation. They further argue that it is not reasonable to believe the legislature could have intended to discriminate against the individual who chooses to gamble by himself rather than to join a group of fellow gamblers.

The state contends that slot machines are not games of chance 'with comparable characteristics'; hence, they are not exempt from the penal provisions of the gambling laws. The state's argument is a combination of distinguishing the characteristics of bingo and slot machines, and determining the legislative intent. The state points out that the trial court concluded slot machines have the same characteristics as bingo since each involves the elements of consideration, prize and chance. The state argues that the import of the trial court's conclusion would allow any form of gambling by exempt organizations since all lotteries have the characteristics of consideration, prize and chance.

The parties have limited their argument...