State v. Wiley

• Decision Date: 12 May 1942
• Docket Number: 45881.
• Citation: 3 N.W.2d 620,232 Iowa 443
• Parties: STATE v. WILEY et al.
• Court: Iowa Supreme Court

3 N.W.2d 620

232 Iowa 443

STATE v. WILEY et al.

No. 45881.

Supreme Court of Iowa

May 12, 1942

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Francis J. Kuble, Co. Atty., and James P. Irish, Asst. Co. Atty., both of Des Moines, for appellant.

Louis Ansher and J. R. McManus, both of Des Moines, for appellees.

OLIVER Justice.

The grand jury returned the following indictment against the defendants herein, to wit:

"The Grand Jury of the County of Polk, in the State of Iowa accuse R. L. Wiley and Joseph Epstein of Illegal Possession of Gambling Devices as defined in Section 13210 of the 1939 Code of Iowa, and charge that R. L. Wiley and Joseph Epstein had kept or held in their possession or under their control certain devices commonly known as Pin Ball machines, which operate by means of the insertion into the slot provided on said Pin Ball Machine of a five cent coin which then allows the person playing said Pin Ball Machine by means of a plunger on said Pin Ball Machine and the manipulation of a ball, or balls, in said Pin Ball Machine to attain or seek a certain score which, if attained by the player, entitled the player as shown on the Pin Ball Machine to additional games free, in violation of Section 13210 of the 1939 Code of Iowa."

Defendants filed a demurrer to the indictment, the first three grounds of which were as follows: "1. That the indictment fails to charge a crime under the statutes of Iowa. 2. That the facts charged do not constitute an offense punishable under any of the statutes of Iowa. 3. That the facts charged, if true, would constitute a complete defense and bar to prosecution."

The court sustained the demurrer and dismissed the case. The State appeals. The principal question presented by the appeal is whether or not the possession by defendants of the pin ball machines described in the indictment is prohibited by the provisions of Section 13210, Code of Iowa 1939. That section provides: "13210 Possession of gambling devices prohibited. No one shall, in any manner or for any purpose whatever, except under proceeding to destroy the same, have keep, or hold in possession or control any roulette wheel klondyke table, poker table, punch board, faro, or keno layouts or any other machines used for gambling, or any slot machine or device with an element of chance attending such operation."

In 1937 the language above italicized was added to the statute. The Iowa cases cited herein were decided prior to the time the statute was amended. They involve mint-vending machines. The player drops a nickel in the slot and spins the mechanism by pulling a lever. The machine delivers a package of mints and at times also delivers certain metal discs or printed slips upon which different sayings are printed. When these discs or slips are exchangeable for merchandise the machines are almost universally condemned by the courts as gambling devices despite the ingenuity of inventors to so construct them as to cloak their real character. State v.

Ellis, 200 Iowa 1228, 206 N.W. 105; State v. Doe, 221 Iowa 1, 263 N.W. 529.

State ex rel. Manchester v. Marvin, 211 Iowa 462, 233 N.W. 486, is a leading Iowa case, frequently cited by other courts. That machine in return for the nickel delivered the mints and in addition, at times determined by chance, delivered various numbers of metal discs with which the machine could be replayed. When played with discs the machine did not deliver mints but did, at uncertain times, release additional discs. Each time the machine was played a set of reels was spun. On these were printed certain phrases, which, when the reels stopped, formed sentences purporting to give humorous advice to the player. The discs were marked "good for amusement only" and were not exchangeable for cash or anything other than replays of the machine. The court said, "* * * If it were conceded that the disc had no value, yet the nickel which it induced from the patron did have value. The use of the discs had a manifest purpose. Such purpose was to stimulate the expectation of the buying patron that he might receive something more than a package of mints. The only apparent economic reason for their use was that they would induce a larger deposit of nickels in the slot than would otherwise ensue. Among the patrons of the machine, some, if not many, of them, might prefer the feature of amusement, rather than the package of mints. If these discs were made 'good' for admission to a movie or other place of amusement, their character as a gambling device would be readily recognized. Something akin thereto was their actual function as used. The 'movie' was furnished instanter in response to the call of the disc. It must be held, therefore, that the machine in question was a gambling device within the meaning of the statute. * * *"

Some similar holdings from other jurisdictions in cases involving mint-vending machines identical to or substantially the same as the machine in State ex rel. Manchester v. Marvin, supra, are: Howell v. State, 184 Ark. 109, 40 S.W.2d 782, cites State ex rel. Manchester v. Marvin; Painter v. State, 163 Tenn. 627, 45 S.W.2d 46, 81 A.L.R. 173, cites State ex rel. Manchester v. Marvin; Heartley v. State, Tenn. Sup., 157 S.W.2d 1; Jenner v. State, 173 Ga. 86, 159 S.E. 564; State v. Mint Vending Machine, 85 N.H. 22, 154 A. 224; State v. Baitler, 131 Me. 285, 161 A. 671, cites State ex rel. Manchester v. Marvin; Snyder v. Alliance, 41 Ohio App. 48, 179 N.E. 426; Gaither v. Cate, 156 Md. 254, 144 A. 239; Colbert v. Superior Confection Co., 154 Okl. 28, 6 P.2d 791; Ross v. Goodwin, D.C.N.H., 40 F.2d 535; Green v. Bart, D.C. Conn., 41 F.2d 855; White v. Hesse, 60 App.D.C. 106, 48 F.2d 1018; Boynton v. Ellis, 10 Cir., 57 F.2d 665; Boynton v. Mills Novelty Co., 10 Cir., 60 F.2d 125.

In O. D. Jennings & Co. v. Maestri, D.C., 22 F.Supp. 980; Id., 5 Cir., 97 F.2d 679, the statute prohibited the keeping of "a 'slot machine' or similar mechanical device" operated for gambling. It was contended the machine was a legal vender and not a gambling device in violation of the statute. The machines were held illegal "both because they could be operated as gambling devices, paying off in money or valuable merchandise, and because, by the operation of the laws of chance, they delivered things of value, towit, tokens, the playing of which afforded amusement to those thus inclined." The footnote cites State ex rel. Manchester v. Marvin, supra. See, also, 24 A.J. 422 and annotations in 81 A.L.R. 177.

There are some cases to the contrary, among which are: Commonwealth v. Kling, 140 Pa.Super. 68, 13 A.2d 104; Mills Novelty Co. v. Farrell, D.C., 3 F.Supp. 555; Id., 2 Cir., 64 F.2d 476; Mills Novelty Co. v. Bolan, D.C., 3 F.Supp. 968; Mills Novelty Co. v. O'Ryan, 2 Cir., 68 F.2d 1009; Davies v. Mills Novelty Co., 8 Cir., 70 F.2d 424.

However, the Supreme Court of the United States granted certiorari in the O'Ryan case (New York) 292 U.S. 615, 54 S.Ct. 629, 78 L.Ed. 1474, and after the writ was granted, New York having adopted legislation prohibiting free game machines, the case was reversed and ordered dismissed without prejudice. 292 U.S. 609, 54 S.Ct. 779, 78 L.Ed. 1469.

To recapitulate, in State ex rel. Manchester v. Marvin and in the majority of decisions of other courts of this country, mint-vending machines, which by chance occasionally deliver discs to the player, have been held to be gambling devices even though the discs are exchangeable for nothing other than additional whirls of the machine. The basis for such holdings is that free plays are things of value.

If free plays of a mint-vending machine are things of value, it seems logical that free games upon a device such as those described in the indictment in this case are likewise things of value. Various authorities sustain this conclusion. As a matter of fact the play of the mint-vending machine presumably is merely accessory to the purchase of mints. The coin inserted in the pin ball machine presumably is paid solely for the amusement of operating the machine. Thus, the coin measures the value of a game. Therefore, a free game upon the latter machine has a definite fixed value. If one game is worth a nickel, it is clear that additional games are things of value. And the rule is the same whether the machine emits discs with which it can be replayed or works automatically as in the case at bar.

The following cases concern machines or devices of the same general type as those in this case. In Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N.E.2d 159, 160, this language appears: "Amusement is a thing of value. Were it not so, it would not be commercialized. * * * Since amusement has value, and added amusement has additional value, and since it is subject to be procured by chance without the payment of additional consideration therefor, there is involved in the game three elements of gambling, namely, chance, price and a prize." State ex rel. Manchester v. Marvin, supra, is cited.

State v. Abbott, 218 N.C. 470, 11 S.E.2d 539, 544, states: "Lest it be attempted to distinguish these cases because the slot machines therein considered emitted token or checks, whereas it does not appear that the one in the instant case did, it should be pointed out that these decisions hold that the thing played for and received is actually the right to operate the machine an additional time or times, and not the token which represents that value." State ex rel. Manchester v. Marvin, supra, is cited as a supporting authority.

Alexander v Martin, 192 S.C. 176, 6 S.E.2d 20, 23, involved an automatic free game pin ball machine with which the court compared the disc emitting machines as follows: "The tokens were but symbols evidencing the right acquired by...