of the deposited coin, and permitted to be so used, may be condemned as a gambling device, notwithstanding a rule to the effect that customers will not be permitted to make consecutive purchases and an agreement by the storekeeper to see that it is not so used. [See note on this question beginning on page 73.] EXCEPTIONS by the defendant owner to rulings of the Superior Court for Kent County (Baker, J.) made during the trial of a proceeding brought to have certain gambling instruments declared forfeited, which resulted in declaring the machine a gambling device and ordering its forfeiture. Overruled. The facts are stated in the opinion of the court. Mr. Joseph H. Coen for defendant. Messrs. Charles P. Sisson, Attorney General, and Harold E. Staples, Assistant Attorney General for the State: The machine was a gambling device and properly forfeited. Ferguson v. State, 178 Ind. 568, 42 L.R.A. (N.S.) 720, 99 N. E. 806, Ann. Cas. 1915C, 172; State v. Googin, 117 Me. 102, 102 Atl. 970; State v. McTeer, 129 Tenn. 535, 167 S. W. 121; State v. Johnson, 15 Okla. Crim. Rep. 460, 177 Pac. 926; People ex rel. Verchereau v. Jenkins, 153 App. Div. 512, 138 N. Y. Supp. 450; Cagle v. State, 18 Ala. App. 553, 93 So. 206; Tonahill v. Molony, 156 La. 753, 191 So. 130; Pure Mint Co. v. Labarre, N. J. Eq. 125 Atl. 105; Almy Mfg. Co. v. Chicago, 202 Ill. App. 240; Rex O'Meara, 34 Ont. L. Rep. 467, 25 D. L. R. 503; Lang v. Merwin, 99 Me. 486, 59 Atl. 1021. V. Rathbun, J., delivered the opinion of the court: This is a proceeding in rem to have a certain nickel in the slot machine declared forfeited to the state in accordance with the provisions of chapter 410, Gen. Laws 1923. The proceeding was commenced in the district court of the fourth judicial district. Said court adjudged the machine to be a gambling instrument and forfeited to the state, and ordered a warrant issued for the destruction of said machine. owner appealed from the said decision and order to the superior court, and the case was heard by a justice of said court, sitting without a jury, and is now before us on the owner's exception to the action of said justice in adjudging said machine to The be a gambling instrument and ordering its forfeiture. The owner designates the instrument in question as a mint-vending machine. Its operation may be briefly described as follows: By depositing a nickel coin in a slot, pulling a lever, and turning a knob, the operator receives from the machine one package of mints and, if lucky, brass checks varying in number from two to twenty, redeemable at 5 cents each in trade at the store where the machine is located. For each nickel deposited in the slot the machine delivers to the operator a package of mints of the retail value of 5 cents. In each instance the machine indicates in advance whether or not the operator will, by that particular operation, receive any checks in addition to the package of mints, and, if so, how many. It is contended by the owner that the element of chance is eliminated because the operator always knows in advance what he will receive for the nickel he deposits, but the operator knows, also, that after the expenditure of a nickel in operating the machine the indicator may show that a like expenditure of another nickel may bring, in addition to another package of mints, as many as twenty checks. The chance that the second play will give something for nothing is, apparently, a very strong appeal to the gambling instinct, as the owner testified that the machine would sell a thousand times as many mints as could be sold over the counter. the machine is a printed notice con (R. 1. - 128 Atl. 12.) taining a rule to the effect that customers will not be permitted to make consecutive purchases, and in an instrument, purporting to be an agreement between the owner and the proprietor of the store from which the machine was taken, is a clause whereby said proprietor agrees to "see" that customers do not use the machine for gambling purposes or in violation of the above rule. Two persons, by alternate playing, might operate the machine indefinitely without violating said rule. It would be practically impossible for a storekeeper to watch the machine every time it is operated, even if it should be assumed that he would be willing to limit his own profits and those of the owner, and honestly desires to prevent consecutive playing by the same person; but we are very strongly of the opinion that the rule is a mere subterfuge, made use of in an attempt to evade the law. However, the question of intent is unimportant, as this is a proceeding, not against the owner, but against the machine. See 27 C. J. 1045. The questions are whether the machine is so constructed that it may be used as a gambling instrument, and whether it was being so used in the store where the machine was seized. It is clear that the machine was so constructed and loaded with packages of mints and with brass checks that it was capable of being used as a gambling instrument. The only evidence as to how the machine was used in said store was the testimony of Ellis A. Cranston, chief of police. of the town of Warwick, the town in which the store from which the machine was taken was located, who testified that he, in the presence of a clerk in charge of the store at the time, played the machine three times consecutively, and received a package of mints each time; that at the end of the third play the indicator exhibited the figure 2; that he asked the clerk what the significance was of the figure 2, and was told that by playing another nickel he would get two checks. He further testified that he "played another nickel and got them." It appearing that the machine was so constructed and loaded as to be readily used for mint-vending of use for gambling purposes, Gaming- The owner's exception is overruled, and the case is remitted to the Superior Court for further proceedings in accordance with the decision of said justice. ANNOTATION. Slot vending machine as gambling device. A slot machine, it has been said, is not per se a gambling device, since it may be used or played upon for an innocent purpose, and the courts 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. This annotation will undertake to deal only with those cases involving machines which, for each deposit in the slot, will with certainty deliver or "vend" to the customer an equivalent value in merchandise. It is not concerned with the legality vel non of machines dispensing coupons, chips, or trade checks alone. It is generally held that a slot vending machine which, in return for a coin deposited therein, dispenses merchandise of the value of such coin, accompanied at occasional and uncertain intervals by a varying amount of money, trade checks, or coupons, is a gambling device. Allen V. Com. (1917) 178 Ky. 250, 198 S. W. 896. Com. v. Gritten (1918) 180 Ky. 446 202 S. W. 884; State v. May (1924) 188 N. C. 470, 125 S. E. 9; People v. Nahmias (1913) 146 N. Y. Supp. 856, 29 N. Y. Crim. Rep. 310. Thus in State v. May (1924) 188 N. C. 470, 125 S. E. 9, the operation of a machine dispensing gum and, at uncertain intervals, additional packages of gum or trade checks, was held to be unlawful within the meaning of a statute prohibiting the operation of "any slot machine that shall not give . . . the same return in market value each and every time such machine is operated." Nor is such a machine rendered innocuous by the fact that it indicates in advance of each deposit exactly what it will dispense, it being considered that, in such instances, the player gambles not on the immediate return for the coin he deposits, but on the hope or chance that the indicator will show a profit on his next play. Alabama.-Cagle v. State (1922) 18 Ala. App. 553, 93 So. 206. Arkansas.-Sheetz v. State (1922) 156 Ark. 255, 245 S. W. 815. 246, 29 D. L. R. 527; Rex v. O'Meara (1915) 34 Ont. L. Rep. 467, 25 Can. Crim. Cas. 16, 25 D. L. R. 503; Bareham v. Rex (1916) Rap. Jud. Quebec 25 B. R. 354, 26 Can. Crim. Cas. 211, 31 D. L. R. 431. Contra: Rex v. Langlois (1914) 23 Can. Crim. Cas. 43; Rex v. Stubbs (1915) 9 Alberta L. R. 26, 25 D. L. R. 424, 24 Can. Crim. Cas. 303 (reversing (1915) Alberta L. R. 24 Can. Crim. Cas. 60, 21 D. L. R. 541). Thus, in State v. Googin (Me.) supra, it was held that a gum-vending machine which indicated in advance that, in return for a nickel deposited therein, it would discharge either a 5-cent package of gum alone, or the gum and a certain number of 5-cent trade checks, was a gambling device. The court said: "Respondent says the gum machine involves no element of chance; that each play of the machine is a completed transaction, and shows precisely what the player is to receive, and what the machine is to give; that there is no contract, express or implied, that the player shall have a second or third play to avail himself of the opportunity of obtaining the trade checks; that, this being so, there is no element of chance. But the fallacy of this contention is found in the assumption that the machine deals with the individual, whereas by its method of operation, of necessity, it deals with the public. It is an automatic device, the operation of which is planned in every detail before it is put in use. It is then placed in public places, to be automatically worked. It is the dumb agent of its owner, inviting the public to operate it as often, and as many times, as any one of the public may please. We find no limitation upon the right of the same person to operate over and over again. It is undoubtedly this unlimited right that allures the patronage that makes the operation of the machine profitable. If the player does not win the first time, he knows he can repeat till he does win. It is, therefore, quite apparent that it is the prize, and not the gum, that invites the public. Accordingly, while each play is a com pleted act, it may be only preliminary to the future play, by the same person, which will bring forth the coveted prize, the chance in this operation being not in the visible play, which may show only a package of gum, but in the invisible play by which the machine may turn up a visible prize to be captured on the next play. If a play turns up no premium neither party loses. If it does turn up a premium, then the machine loses on that particular play. But it is said there is no loss to the machine in the end, and consequently no chance, because the machine has calculated the profits and losses beforehand, and set apart a certain part of the profits to be allowed its customers. True. but not to all customers alike. Some get something; some get nothing; some more: some less. In this lies the test of what this device means, and the theory upon which it is conceived and worked, namely, to induce customers to play the machine with the expectation of getting something for nothing,-it matters not what customer is successful, as it is perfectly obvious that one part of the public pays in money for what another part of the public gets in prizes. In other words, this machine is a device designed to play one part of the public against another part of the public, for the purpose of inducing the whole public to take the chance of gain, which in the end results in producing to its owner the predetermined profits. It is also claimed that this device is in the nature of a profit-sharing enterprise, or similar in its purpose to the practice of department stores in offering premiums to the departments showing the largest increase of profits. But a department store does not take profits from one part of its customers or employees, with which to pay premiums to another part. No one set of customers is predestined to pay an extra price for the purpose of contributing funds for the payment of awards. But the owner of this machine, in advance, takes money out of one part of the public and gives it to another part, whose winnings depend upon the chance, arranged in advance. of just when, and just how much a certain play of the machine will produce to the player who is lucky enough to approach it at the moment of the predestined play. If he then draws twenty checks valued at 5 cents each, he wins, in addition to his gum, $1. Another may win ten checks; another, five; an inequality of value probably running through the whole list of prizes. This transaction cannot be regarded as a 'profit-sharing' enterprise, as we understand the phrase, nor a legitimate distribution of premiums for services rendered, as in the case of department stores." And in Moberly v. Deskin (1913) 169 Mo. App. 672, 155 S. W. 842, it was said: "In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter, but to do violence to the spirit and thwart the beneficent objects and purposes, of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified, and cunning mechanical inventions. The chief element of gambling is the chance or uncertainty of the hazard. It is not essential that one of the parties to the wager stands to lose. The chance taken by the player may be in winning at all on the throw, or in the amount to be won or lost, and the transaction should be denounced as gaming whenever the player hazards his money on the chance that he may receive in return money or property of greater value than that he hazards. If he is offered the uncertain chance of getting something for nothing, the offer is a wager, since the operator offers to bet that the player will lose, and in accepting the chance the player bets that he will win. Such offer, therefore, is a direct appeal to the gambling instinct, which, it is said, possesses every man in some degree; and it is the temptation to gratify the instinct that all penal laws aimed at gambling are designed to suppress. One cannot imagine that a player would stop when the indicator pointed at trade checks, i. e., at a certainty of gain. Consequently, the inventor of the device knew that, when each new player began, the indicator invariably would point to gum only, i. e., to no reward for the next play, but he also knew that in the vast majority of instances the dealings between the player and the machine would consist of more than a single play, and we hold as unsound the view of defendant that each play constituted a separate and distinct transaction, in the sense of ending the relation of the player to the machine, which was designed and intended to include a number of plays. The contrivance was intended to allure the player into continuing to play in the hope that the next time the finger would point to trade checks, and thus bring him something for nothing." In Pure Mint Co. v. Labarre (1924) N. J. Eq. 125 Atl. 105, after pointing out that the element of chance entered into the transaction with regard to the number of checks which the machine, after the completion of the first operation, would offer for the next, the court said: "[Defendant] argues that the machine must needs be considered solely from the standpoint of a single separate operation; that no customer has any right to a second operation, or to continue to operate it. It may well be that the customer has no such definite, technical, legal right; doubtless, as a matter of law, the shopkeeper would have a lawful right to refuse to permit a customer to operate the machine a second time in succession, just as he might lawfully refuse to sell a loaf of bread or a cigar to an intending purchaser. But it is not pretended that any shopkeeper having one of these machines ever has refused to permit a second successive operation, or is ever likely to so do. The machine itself bears no announcement of any such limitation; and the only rea son which can be conceived for the devising and manufacture of such a machine is that the lure of the chance of gains on a second operation will induce, or help to induce, the first operation. The customer may have no definite legal right to continue to operate, but as a practical matter he has such right under the sanction of common usage and custom. No one would ever think of attempting to displace a customer at one of the ordinary chocolate or chewing gum vending machines until such customer had completed his intended purchases. A customer in a retail store is, by common usage, conceded the 'right' to continue to make additional purchases from the salesman who is waiting on him. Suppose a customer of one of the machines in question, having once operated the machine, receiving only the package of mint and no premium. checks, sees that if he operates it again he will get five or ten premium checks. No shopkeeper, unless intent on commercial suicide, would conceivably refuse to permit him to operate it a second time; and any bystander who attempted to displace the first customer would inevitably bring on a breach of the peace. It is also argued . . . that the machine is not a gambling device, because there is no possibility of loss to the customer; because for each nickel deposited he invariably receives his 5-cent package of mints, whether he receives any premium checks or not. This contention is not sound. The statute makes no such differentiation. It is just as much a playing for valuable things (premium checks) whether the candy is delivered or not; the difference is in degree, but not in kind." |