State v. Woodman

• Decision Date: 10 March 1902
• Citation: State v. Woodman, 26 Mont. 348, 67 P. 1118 (Mont. 1902)
• Parties: STATE v. WOODMAN.
• Court: Montana Supreme Court

67 P. 1118

26 Mont. 348

STATE v. WOODMAN.

Supreme Court of Montana

March 10, 1902

Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.

Elmer E. Woodman was convicted of running a nickel in the slot machine in violation of law, and he appeals. Affirmed.

Nolan & Loeb, for appellant.

Jas Donovan, Atty. Gen., for the state.

BRANTLY J.

The defendant was charged by information with a violation of the act of the 7th legislative assembly (Laws 1901, p. 166), by willfully and unlawfully running and conducting, and permitting to be run and conducted, a certain nickel in the slot machine for cigars, in his cigar store in the city of Helena. A general demurrer was interposed to the information and overruled. Thereupon the defendant entered his plea of not guilty. A trial was had, which resulted in a verdict of conviction. A motion in arrest of judgment was overruled, and the defendant was sentenced to pay a fine. The facts submitted to the jury were embodied in an agreed statement signed by counsel, and are as follows: "On the 23d day of September, 1901, Elmer E. Woodman was running a cigar store in the city of Helena, Lewis and Clarke county, Montana. On said day he had on his counter what is known as a 'nickel in the slot machine.' This machine is a contrivance which has a pack of cards on rollers, exhibiting five cards at a time, and with an aperture for the deposit of a nickel. When the nickel is deposited a spring is pressed, which sets the roller revolving, and when the revolution ceases five cards are brought into view out of the fifty-two cards in the pack. Under rules which govern the machine, if in those five cards thus appearing a pair of kings appears, the player gets one cigar; if a pair of aces, two cigars are paid; if two pairs are shown in the five cards, the player gets two cigars; if three of a kind are shown, the player gets three cigars; if a straight (that is, five cards of consecutive numbers) or a flush (that is, five cards of the same suit) is shown, the player gets five cigars; if a full hand (that is, three of one kind and a pair) is shown, the player gets ten cigars; and if a straight flush (that is, five cards of consecutive numbers of the same suit) is shown, the player gets twenty-five cigars; and if a royal flush (that is, an ace, king, queen, jack, and ten spot of the same suit) is shown, the player gets one hundred cigars for five cents. If of the five cards then exhibited in the manner above set forth none of the above combinations appear, the player gets nothing; but the player takes the chance of getting for five cents one cigar, or for five cents he may get two cigars, or for five cents he may get three cigars, or for five cents he may get five cigars, or for five cents he may get ten cigars, or for five cents he may get twenty-five cigars, or for five cents he may get one hundred cigars, or for five cents he may get nothing. The cigars distributed sell for and are worth twelve and one-half cents each. On the 23d day of September, 1901, Knute Opheim went into the store of Elmer E. Woodman, and commenced playing the nickel in the slot machine above described. On this occasion he played ten nickels. For some of said nickels he received nothing whatever. With some of the nickels the cards appearing were in such combinations that he got nothing whatever, and in one instance the combination of the cards was such that for the nickel he got two cigars. On the same day August Fack put one nickel into the slot machine and got nothing whatever, and he put in a second nickel and two pairs of cards were exhibited, and he got two cigars. On the third nickel placed in said slot machine he got nothing whatever. On the fourth nickel he got nothing whatever. On the fifth nickel so placed in said slot machine he got three cards of the same kind, and received three cigars, making a total of five cigars that he got for the five nickels that he deposited. Ed. S. Walker deposited several nickels in said machine on the above named date, and received nothing whatever for the same. Others on the same occasion deposited nickels in the said machine, pressed the lever, the cards revolved, but they received nothing whatever for the money so deposited. Others deposited nickels in the said machine, and the cards so appeared that they received cigars greater in value than the nickels so deposited. No checks of any kind were used or issued by the defendant Elmer E. Woodman while said machine was being played. This machine was placed, operated, and conducted in the city of Helena, Lewis and Clarke county, state of Montana. At the time of the passage of the law under which this prosecution is brought, there were in use and operation in the city of Helena and elsewhere in Montana nickel in the slot machines of different kinds, in the operation of which the player was paid in money instead of cigars; that is, money exclusively."

The defendant has appealed from the judgment, and, not challenging the sufficiency of the information in other respects, presents for determination two questions raised by his demurrer and motion in arrest of the judgment upon the validity and construction of that section of the statute under which the conviction was had. These questions are: (1) Is section 2 of the act unconstitutional because it is class legislation? And, (2) admitting the constitutionality of this section, does the use of a nickel in the slot machine for the distribution of cigars, as shown by the facts in this case, fairly fall within its terms?

1. The act is entitled "An act to prohibit gambling within the state of Montana, to provide penalties for violations of this act." etc. The parts of it pertinent here are the following:

"Section 1. Every person who deals, plays, carries on, opens or causes to be opened, or who conducts or causes to be conducted, either as owner or employee, any game of monte, lansquentet [lansquenet], rouge et noir, dondo, tan, fan-tan, percentage, stud horse poker, craps, seven and a half, twenty-one, or any banking or percentage game, or any game commonly known as a sure thing game, for money, checks, credits, or any representative of value, or for any property or thing whatever, any peeposcope or nickel-in-the-slot machine, exposing to view lewd, indecent or obscene pictures, is punishable by a fine of not less than five hundred dollars nor more than one thousand dollars, and every person convicted of a violation of this section must be imprisoned until such fine and costs are paid.

"Sec. 2. Every person who carries on, opens or causes to be opened or who conducts or causes to be conducted, any game of faro, roulette, draw poker, stud horse poker, or what is commonly called round-the-table poker, or solo, or any game of chance played with cards, dice, or any device whatever, or who runs or conducts any nickel-in-the-slot machine or other similar machine or permits the same to be run or conducted, other than the games commonly known as sure-thing games, for money, checks, credits, or any representative of value, or for any property or thing whatever, and

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