Territory Hawai`i v. Uyehara, s. 4005 and 4016.

• Decision Date: 31 October 1957
• Docket Number: Nos. 4005 and 4016.,s. 4005 and 4016.
• Citation: 42 Haw. 184
• Parties: TERRITORY OF HAWAII v. RICHARD S. UYEHARA.
• Court: Hawaii Supreme Court

42 Haw. 184

TERRITORY OF HAWAII

v.RICHARD S. UYEHARA.

Nos. 4005 and 4016.

Supreme Court of the Territory of Hawai‘i.

Argued October 16, 1957.

Decided October 31, 1957.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, AND EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. CARRICK H. BUCK, JUDGE.

Syllabus by the Court

In view of the holding in Territory v. Shinohara, 42 Haw. 29, that the operation of pin–ball machine is not lottery, it is not necessary to decide whether free games won on a pin–ball machine constitute “property” as used in the lottery statute, R. L. H. 1945, § 11340 (R. L. H. 1955, § 288–1).

Free games won on a pin–ball machine come within the meaning of “anything of value” as used in the gambling statute, R. L. H. 1945, § 11343 (R. L. H. 1955, § 288–4), and a pin–ball game in which free games are won upon attaining a certain score is within the prohibition of the gambling statute.A. Peter Howell, Assistant Public Prosecutor, City and County of Honolulu ( John H. Peters, Public Prosecutor, City and County of Honolulu, with him on the briefs), for plaintiff in error in Case No. 4005 and appellee in Case No. 4016.

John R. Desha II (also on the briefs) for defendant in error in Case No. 4005 and appellant in Case No. 4016.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY MARUMOTO, J.

The case involves the question as to whether the setting up of a pin–ball machine and permitting it to be played for a consideration, with the added inducement of free games upon the attainment of a certain score, constitutes a violation of the gambling statute and the lottery statute, or either of them.

The case began with the filing of an information by the Territory against the defendant. The information consists of two counts. In the first count, the Territory alleged that the defendant violated the gambling statute by conducting a pin–ball game. In the second count, the Territory alleged that the defendant violated the lottery statute by conducting such game.

The pin–ball game, as described in the information, is a game played on a mechanical device hereafter referred to as pin–ball machine. The game is started with the insertion of a five–cent coin into a slot provided in the machine for its reception. The insertion of the coin releases a number of balls which may be manipulated to attain a certain score, which, if attained, entitles the player to free games. The number of free games is mechanically registered on the machine upon the attainment of the score.

The gambling statute is contained in R. L. H. 1945, § 11343 (R. L. H. 1955, § 288–4) and reads as follows:

“§ 11343. Playing prohibited games. Every person who deals, plays, or carries on, opens or causes to be opened, or who conducts either as owner or employee, whether for hire or not, any game of faro, monte, roulette, tan, fan tan, or any banking or percentage game played with cards, dice or any device for money, checks, credit or any representative of value or any other game in which money or anything of value is lost or won, and every person who plays or bets at or against any such prohibited game or games, and every person present where such game or games are being played or carried on, is guilty of a misdemeanor.”

The lottery statute is contained in R. L. H. 1945, §§ 11340 and 11341 (R. L. H. 1955, §§ 288–1 and 288–2) and reads as follows:

Ҥ 11340. Lottery defined. A lottery is any scheme for the disposal or distribution of property by chance among persons who have paid or promised to pay any valuable consideration for the chance of obtaining the property, or a portion of it, or for any share or any interest in the property upon any agreement, understanding or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, che fa, pakapio, gift enterprise or by whatever name the same may be known.

“§ 11341. Maintaining or assisting, etc. Every person who contrives, prepares, sets up, draws, maintains or conducts, or assists in maintaining or conducting any lottery is guilty of a misdemeanor.”

It will be noted that under the statutes quoted above, a requisite element of gambling is that “anything of value” be lost or won and that a requisite element of lottery is that “property” be disposed of or distributed.

The defendant demurred to the first count of the information on the ground that free games are not anything of value and to the second count on the ground that free games are not property. The court below held that free games come within the meaning of “anything of value” in the gambling statute but do not come within the meaning of “property” in the lottery statute. It thereby overruled the demurrer as to the first count and sustained it as to the second count.

The case is before this court on a bill of exceptions filed by the defendant to the order overruling the demurrer on the first count and a writ of error sued out by the Territory to the order sustaining the demurrer on the second count.

In Territory v. Shinohara, 42 Haw. 29, we held that the conduct of a pin–ball game does not constitute a lottery. In view of such holding we need not decide whether free games come within the meaning of “property” as used in the lottery statute.

Territory v. Shinohara is limited in its application to a charge of violation of the lottery statute. We stated in that case: “This opinion does not extend to the question as to whether the operation of such device, in the manner alleged in the complaint, violates any other criminal statute. As to such question, we express no opinion because it has not been presented to this court.”

Here we are presented with such question because the Territory alleges a violation of the gambling statute, in addition to a violation of the lottery statute. The language of the gambling statute includes within its prohibition every game in which money or anything of value is lost or won. The game need not be ejusdem generis with the games enumerated in the statute. (Territory v. Apoliona, 20 Haw. 109) Even if the proper interpretation of the statute requires that the game be ejusdem generis with the enumerated games, a pin–ball game, in which anything of value is lost or won, is covered by the statute because it is a banking game. A banking game is a game in which there is a fund against which everybody has the right to bet, the bank taking all that is lost by the bettors and paying out all that is won. (135 A. L. R. 120, and cases cited)

In this case there is no cash pay–off. The pay–off comes in the form of a right to play additional games free. So, the crucial question is whether such right is “anything of value.” We are of the opinion that it is.

A pin–ball machine which does not pay off in cash or tangible property is played for amusement. A right to obtain amusement has value. Thus, a person who seeks amusement in music pays admission to a concert. To him the amusement is worth the amount of admission. Similarly, a person who seeks amusement in golf pays a green fee for the right to play golf. To him the amusement is worth the amount of green fee. So, a person who seeks amusement in a pin–ball game inserts a five–cent coin in the pin–ball machine. To him the amusement derived from playing one pin–ball game is worth five cents. If he wins a right to play a game free, such right has a value of five cents to him, for if he does not have such right he will be required to pay that amount to play the game.

In Giomi v. Chase, 47 N. M. 22, 132 P. (2d) 715, the supreme court of New Mexico construed a statute similar to ours. The statute made it unlawful to operate a game of chance played with any gaming device for money or “anything of value.” The lower court had held that the operation of a pin–ball machine with a free game feature did not violate the statute on the ground that although amusement was a thing of value, the form of amusement involved in...