State v. Stigler

• Decision Date: 07 June 1937
• Docket Number: 32805
• Citation: 175 So. 194,179 Miss. 276
• Court: Mississippi Supreme Court
• Parties: STATE v. STIGLER

175 So. 194

179 Miss. 276

STATE v. STIGLER

No. 32805

Supreme Court of Mississippi

June 7, 1937

Division B

1. INDICTMENT AND INFORMATION.

In construing a criminal statute, if its language can be applied to both innocent and guilty purposes, indictment and proof should go beyond mere language of statute.

2. INDICTMENT AND INFORMATION. Statutes.

The language of a criminal statute must be construed in light of purposes for which statute was enacted and proof must correspond thereto and establish intent of offense.

3 GAMING.

In prosecution for unlawfully operating a slot machine instructing that to convict jury must believe beyond reasonable doubt that some person other than accused played or operated machine was not error, since it was not unlawful per se, for owner of slot machine to keep it and operate it for amusement and not as a gambling device (Code 1930 section 821).

4. GAMING.

In prosecution for unlawfully operating a slot machine, admission of testimony of payment of privilege tax was not error, notwithstanding evidence as to privilege tax being paid is not ordinarily admissible, where payment was a stipulated fact and court instructed jury that payment did not justify operation of slot machine as a gambling device (Code 1930, section 821).

5. CRIMINAL LAW.

On appeal from judgment acquitting defendant of offense, only legal questions which were decided adversely to state can be considered.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Sunflower county HON. S. F. DAVIS, Judge.

George Stigler was acquitted of the charge of unlawfully operating a slot machine, and the State appeals. Affirmed.

Affirmed.

W. D. Conn, Jr., Assistant Attorney General, for the state.

In the recent case of Atkins v. State, 178 Miss. 804, there was an affirmance of a conviction for the operation of a slot machine. In that case the court held that it was no defense that the operator of such a slot machine had procured a privilege license to operate it. Consequently, if such privilege tax is no defense, the evidence thereof is incompetent and irrelevant, so far as the guilt or innocence of the person charged with operating such a machine is concerned.

This prosecution was under the provisions of Section 821 of the Mississippi Code of 1930, which makes it unlawful for any person to operate a slot machine which does not indicate in advance what the purchaser is to receive on each operation of the machine. In the statement of facts he also agreed that he, the said defendant, then and there knowingly operated the said machine. In the face of this, the court gave an instruction at the request of the defendant that before the jury could convict him it would have to believe from the evidence beyond a reasonable doubt, not only that he, himself, did operate the machine, but that some other person or persons must have operated it also.

From the plain language of the statute, the indictment and the agreed statement of facts this instruction extended the requirements of the statute and was, in effect, on this record, a peremptory instruction to find the defendant not guilty. Under the statute it is not necessary for the state to show that any person or persons operated it, particularly is this true when the defendant, himself, agreed that he had wilfully and knowingly operated it.

Neill & Townsend, of Indianola, for appellee.

On introduction of agreed statement of facts, the State objected to that part which set out that the defendant had paid a privilege tax in the sum of $ 260 for the operation of said slot machine, on the grounds that it was incompetent, irrelevant, and immaterial, which objection was overruled by the court, but the first and fourth instruction given the State properly instructed the jury that the payment of a privilege tax on a slot machine, wilfully and unlawfully, or knowingly and unlawfully operated, was no defense in the case. In other words, by instruction the lower court in substance sustained the objection to the evidence covered by the State's objection, and under our conception of the law both instructions were properly given by the court.

No error was committed by the court in the giving of the following instruction: "The court instructs the jury that in order to convict the defendant, you must believe from the evidence beyond a reasonable doubt that some person or persons other than the defendant played or operated the machine in question."

A slot machine is not per se a gambling device since it may be used or played upon for an innocent purpose, and the court cannot therefore take judicial notice that every slot machine is a gambling device, as the use to which it is put must determine its character.

12 R. C. L. 730; 38 A. L. R. 73.

We submit that in this case the indictment charges no offense and the proof as evidenced by the agreed statement of facts established no violation of the law, and that the instruction complained of by appellant was properly given. It certainly was not the purpose of the statute to make criminal the keeping and operating of a slot machine operated only by the owner, and that is what this court would have to say if they hold that the instruction...