State v. Wassick

• Citation: 156 W.Va. 128,191 S.E.2d 283
• Decision Date: 22 September 1972
• Docket Number: No. 13067,13067
• Parties: STATE of West Virginia v. John WASSICK.
• Court: Supreme Court of West Virginia

Page 283

191 S.E.2d 283

156 W.Va. 128

STATE of West Virginia v. John WASSICK.

No. 13067.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1972.

Decided June 27, 1972.

Rehearing Denied Sept. 22, 1972.

Syllabus by the Court

1. 'The essential elements of a lottery are consideration, prize and chance; and any scheme or device, by which a person, for a consideration, is permitted to receive a prize or nothing, as may be determined predominately by chance, is a lottery.' Pt. 4, syllabus, State v. Hudson, 128 W.Va. 655. (37 S.E.2d 553).

2. The 'free plays' awarded by a multiple-coin pinball machine are a prize because they have some value to the player either in playing additional games without charge or receiving a 'payoff', and where 'free plays' are won predominantly by chance for a consideration by virtue of the coins placed in the machine, it is a lottery per se under the lottery statute of this State.

3. 'Ordinarily an indictment, containing several counts, which, in each count, states an offense substantially in the words of the statute which creates it, is sufficient on motion to quash and on demurrer.' Pt. 1, syllabus, State v. Hudson, 128 W.Va. 655. (37 S.E.2d 553).

4. 'In a criminal case proof of another offense chargeable to the defendant is admissible to show motive or intent, if such other offense is similar and near in point of time to, has some logical connection with, and tends to establish the commission of, the specific offense charged against the defendant, and indicates that such specific offense is part of a system of criminal action.' Pt. 3, syllabus, State v. Hudson, 128 W.Va. 655 (37 S.E.2d 553).

5. The licensing of a multiple-coin operated pinball machine is merely a revenue measure and does not prohibit the prosecution for a violation of the gaming laws or lottery statute.

William A. Moreland, Morgantown, Robert A. Yahn, Wheeling, for plaintiff in error.

Williams, Connolly & Califano, Paul R. Connolly, Brendan V. Sullivan, Jr., Washington, D.C., William T. O'Farrell, Charleston, Martin M. Nelson, Francis E. Sweet, Chicago, Ill., for amicus curiae.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Richard E. Hardison, Asst. Attys. Gen., Charleston, for defendant in error.

BERRY, Judge:

This is an appeal by John Wassick, hereinafter referred to as defendant, from a final judgment of the Circuit Court of Monongalia County which sentenced him to one year in jail and a fine of $1000 after he had been found guilty by a jury of violating Code, 61--10--11, as amended, which prohibits any person from setting up, promoting, or managing a lottery for money or any other thing of value. The defendant's petition for a writ of error and supersedeas was granted by this Court on March 8, 1971 and the case was submitted for decision on May 2, 1972 on the arguments and briefs of the parties as well as an amicus curiae brief on behalf of the Bally Manufacturing Company.

The defendant was the owner of a multiple-coin pinball machine which was located in a tavern known as 'Jean and John's Place' in Morgantown. In March, 1969 an undercover Morgantown police officer received a 'payoff' of $2.00 from Jean Whitehead, the owner of the tavern, after the officer registered a number of 'free games' on the machine. The officer obtained a warrant and Jean Whitehead subsequently was fined $209.75 by a justice of the peace.

The defendant was indicted by the Grand Jury of the Circuit Court of Monongalia County for violation of the lottery statute, Code, 61--10--11, as amended. In the first count, the indictment alleged, following the language of the statute, that the defendant unlawfully did set up and promote and was concerned in interest in managing a lottery for money and other things of value by placing a multiple-coin pinball machine in a business establishment, and in the second count that he did knowingly and unlawfully promote a lottery for money and other things of value by placing a multiple-coin pinball machine in a business establishment upon premises not his own.

The defendant, who was a pinball machine distributor in Monongalia County, contends that ownership of a multiple-coin pinball machine which does not have any built-in pay-out mechanism does not constitute a lottery per se, and filed a 'Motion to Quash' the indictment on the grounds that there was no statute designating the pinball machine as a lottery. The trial court overruled the motion to quash the indictment.

The pinball machine involved in this case has an inclined horizontal playing field under glass with 25 numbered holes and one 'return ball' hole at the lower end of the machine. The playing field also has numerous pegs, bumpers and springs which affect the course of the ball as it proceeds down the playing field but the machine has no 'flippers' which allow the player the opportunity to keep the ball in play. The object of the player is to light up 3, 4 or 5 numbers in a row. The machine has a multiple-coin feature which means that the number of free games that can be won increases in proportion to the number of nickels which the player is willing to insert into the machine for each game. Although a player can receive 'extra balls' after he has shot all five balls onto the playing field if he inserts a sufficient number of additional nickels, the player is normally limited to five balls. The machine also has a 'tilt' mechanism which voids the game in progress if the machine is shoved or shaken too hard by the player attempting to manipulate the course of the ball. 'Free games' are recorded on a meter visible to the player. In addition to this meter, there are two other meters on the inside of the machine which are not visible to the player. One records the total number of free games won and the other records the number of free games which are cancelled by a 'knockdown switch' or 'button' which removes the number of free games won on the machine recorded on the meter visible to the player.

Under the agreement between the tavern keeper and the distributor, or owner of the machine, the cost of the license for the machine and the profits from the machine are divided equally, and the distributor or owner of the machine installs and provides maintenance for the machine.

During the trial of the case the state endeavored to prove that the three necessary elements which constitute a lottery, namely, consideration, chance and prize, were inherently present in the multiple-coin pinball machine involved in this case. A special agent from the Federal Bureau of Investigation laboratory in Washington, D.C., testified for the state that he was an expert in the mechanics and operation of this particular type of pinball machine, and that he had shot approximately 5,000 balls down each side of the machine and had charted the holes in which the balls had come to rest. He stated that although he had not tried to manipulate the machine in any way to affect the course of the ball on the playing field, he felt that the machine was designed in such a way that skill played a very little part in the outcome of the game.

The justice of the peace who fined the owner of the tavern testified on behalf of the state, over the objection of defense counsel, that the defendant paid the fine of Jean Kegley, who was formerly known as Jean Whitehead. The defendant's counsel contends that it was prejudicial error to allow evidence to be introduced, over his objection, concerning the 'payoff' to the undercover officer, the conviction of the tavern owner, and testimony that the defendant paid the fine for her. The trial court allowed the jury to consider all of this evidence. Jean Kegley, the tavern owner, testified for the defense that the defendant had advanced her the money with which to pay the fine but that she had subsequently reimbursed him.

The defendant has listed eleven assignments of error in his brief but they can be consolidated into four categories for the proper disposition of this case. The main assignments are (1) that the machine is not a lottery per se, (2) that improper evidence was introduced with regard to the 'payoff' and the conviction of the tavern owner for making the 'payoff', (3) the giving of an instruction that 'free plays' constitute a prize or things of value, and, (4) the giving of an instruction that the licensing of the machine by the State of West Virginia and the City of Morgantown was immaterial as to whether it was a lottery or not.

The controlling question in this case is whether or not 'free plays' on the machine constitute a prize. The evidence is overwhelming and apparently conceded that the other elements that constitute a lottery are present in the use of the machine involved, that is, chance is predominant over skill in the use of the machine and that the use of nickels to play the machine constitutes consideration. Under the lottery statute in this state the prize must be 'money or other thing of value'. There is a split of authority in this country as to whether 'free plays' on a pinball machine are things of value constituting a prize. However, the weight of authority is that a 'free play' on a pinball machine such as is involved in the case at bar is a thing of value and constitutes a prize which makes the machine a lottery per se. Annot., 89 A.L.R.2d 815, 822, 823, 839. 'Free plays' are not in themselves money, although they often are converted into money, especially on machines like the one in the instant case and the prevailing view is that they are things of value. 89 A.L.R.2d 815, 839.

The defendant relies on an opinion of the Attorney General of this State, published in 1962, indicating that the lottery statute was a penal law and must be strictly construed and that he was of the opinion that the operation of a single or multiple-coin pinball machine did not constitute a violation of the lottery statute per se. Opinions of the Attorney General are not considered as precedent...