Childs v. State , 70 Ga. App. 99 ( 1943 )

The court erred in overruling the motion for new trial.

DECIDED OCTOBER 28, 1943. The defendant was convicted on an indictment drawn under the Code, § 26-6502, charging that he did "keep, maintain, employ, and carry on a certain scheme and device for the hazarding of money and other valuable things, to wit, two nickel-in-the-slot machines known as pin-ball machines." His motion for new trial was overruled, and he excepted. The machines were electrically operated. A person desiring to play one of them inserted a nickel in a slot. This coin was pushed in by a lever, and the player was thereby served for his use five balls. He then operated a plunger which set a ball in motion and forced it up a groove or alley, where it was turned loose on a slanting board on which "bumpers" were set. In rolling back down the incline the ball struck the bumpers and registered a number when it came to a stop. When all five balls had been used, the total number registered was the total of the sums registered by all of the balls. During the trial the machines were operated in the presence of the jury. The word "spot-pool" was printed on the front of each machine. On the face of the machine were numbers running from 1000 through 10,000. The grand total might vary in accordance with the bumpers which a ball struck going down the incline. Printed on a card on the machine was the following: "No prize, no minors, no gambling allowed. These machines for amusement only." The player, in the operation of the machine, got no prize, no money, or other thing of value. There was no return value of any kind or character to the person who inserted the nickel in the machine. All the player got was the pleasure of operating the machine to ascertain what grand total score he could make by playing the balls.

The evidence shows that there was betting by players on the grand totals registered by the machines. The sheriff testified: "I saw people playing the machines and betting on the side. As the bets were being placed on the side, the machine was being played by inserting a nickel in the slot. I don't know just exactly how they were betting. I heard them and saw them. They said I will bet so and so. I don't know whether they were betting on the numbers or not. There is a chance on these machines that they will make a high score and a low score. I am not familiar enough to say 40,000 or 2,000, but it would make some score. It is probable that one man would make one score and another man a different score. My understanding was, they were betting money, and there was a chance for those betting on a combination, or number, to lose, and another to win. If there was no chance there will be no use to bet. . . I have never seen anybody put a coin in the machine and receive anything of value for that coin. I have never seen one of these machines operate in such a way as there was any chance for a person to gain more than the price he put in. I have never seen any person play either of these machines and have any money as against the machine itself. The only thing I know is, that I have seen two or more individuals operate these machines in such a way as by reason of the operations of the machines they can bet with each other on the result of the operations. A man might take the one marked `spot-ball' and run a score up to 10,000, and another man might run the score up to 15,000, and they could bet as to which would get the highest score. That is all I have ever seen with reference to these two machines, if they are the same machines. I will not say they are, but they are similar." This is the only evidence in the record which indicates any gaming in connection with the machines. There is no evidence that the defendant, who was the proprietor of the restaurant in which the machines were operated, had any knowledge that any of the operators did any side betting among themselves, or participated in such betting in any way. The sheriff testified that he visited the defendant's restaurant only once, when he witnessed the side-betting specified above. He did not see the defendant on that occasion. He testified, however, that the defendant later informed him that defendant saw the witness (sheriff) go to the door on that occasion, but did not tell the sheriff where he was at the time he saw him.

A deputy sheriff testified that he passed the defendant's place of business about 2:20 o'clock a. m., and saw it open, but he did not stop; and that he had seen similar machines giving free games.

The chief of police of Toccoa stated that he had seen the machines in the restaurant during the last two or three months, had seen them played, and did not see any betting; and on cross-examination: "I never did see anybody bet on the side. I never did see anybody operate either one of these machines and receive a pay-off, or anything of value, or a prize. I never did see one or two operate the machines and bet each other as to what number would come up."

The defendant, in his statement at the trial, contended that he furnished the machines for amusement only, and had no knowledge that any of the players had been betting among themselves. 1. In Russell v. Equitable Loan SecurityCo., 129 Ga. 154, 161 (58 S.E. 881, 12 Ann. Cas. 129), it was held that the Code, § 26-6502, under which the indictment was drawn, should be construed in connection with § 26-6501, which declares: "Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor." Section 26-6502 declares: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." Under the evidence, the machines themselves were not inherently gambling devices such as were dealt with in Elder v. Camp, 193 Ga. 320 (18 S.E.2d 622), where the Supreme Court (after quoting § 26-2502) said: "An apparatus known as a `slot machine,' by which a person depositing money therein may, by chance, get directly or indirectly money or articles of value worth either more or less than the money deposited, falls within the purview of this section, and can not be treated as one kept only for amusement."

Able counsel for the State cites Lewis v. State, 57 Ga. App. 340 (195 S.E. 285), as authority to sustain the conviction. That decision is not in point. While the indictment in each case was drawn under the same Code section, the evidence clearly differentiates the Lewis case from the case at bar. The defendant in the Lewis case was convicted of operating a scheme and device known as the "number game," and was known to that game as a "pick-up man." When the officers arrested him he was in possession of five hundred lottery tickets. The evidence clearly showed that he was known as a "pick-up man," and that he was on his way to headquarters with the lottery tickets.

Counsel for the State further cites Snead v. State,62 Ga. App. 541 (8 S.E.2d 735), and Cohen v. State, 62 Ga. App. 542

(8 S.E.2d, 736). We have examined the records in each case of file in the clerk's office. It appears from the evidence in those case that the machine in question automatically paid money when a nickel was inserted therein.

We have been unable to find any decision with facts similar to those here involved, which would authorize the conviction of the defendant. It would seem that to hold that one violated the Code sections in question, merely because he had in his possession a machine such as is described by the evidence in this case, where persons would go and operate and bet among themselves, would eliminate all games of amusement of which we can conceive. The court erred in overruling the motion for new trial on the general grounds.

2. A special ground of the motion complains of a charge to the jury, which in so far as it violated the principle of law above ruled, was erroneous. Two other grounds complain of the admission in evidence of testimony to the effect that people were seen operating the machines, and were seen betting (on the side), and that the machines furnished the chance on which such bets were placed. These grounds are without merit.

Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.