Rouse v. Sisson , 190 Miss. 276 ( 1941 )

DISSENTING OPINION. Section 1 of Chapter 353, Laws of 1938, formerly Section 821, Code of 1930, forbids a person or corporation to have "in possession, own, control, display, or operate any . . . slot machine . . ." The machine here is a slot machine, i.e. "A machine, the operation of which is started by dropping a coin into a slot," Webster's New Int. Dict., 2d Ed., and therefore within the prohibition of the statute unless the generic term "slot machine" should be limited by judicial instruction so as not to include it. The asserted ground for so limiting the term is that when the maxim noscitur a sociis is applied, it will appear that the prohibition of the statute is directed only against machines that are gambling devices. I do not know whether the other things prohibited by the statute are gambling devices or not, and will not pause to inquire for in Crippen v. Mint Sales Company, 139 Miss. 87, 103 So. 503, this court held that whether a slot machine was a gambling device or not was immaterial under the statute. After the decision of which case, the statute was re-enacted without change as Section 821, Code of 1930. It is true that the decision in that case was placed on two grounds: (1) that the slot machine there under consideration was a gambling device, and (2) whether it was such a device or not was immaterial. Nevertheless, neither holding was dicta and both are within the rule of stare decisis.

It may be, as to which I express no opinion, but for the purpose of the argument only will assume, that the amendment of Section 821, Code of 1930, by Section 1, Chapter 353, Laws of 1938, authorizes the term "slot machine" to be so limited by construction as to include only such as are gambling devices, but I am of the opinion that this machine is a gambling device. A slot machine is generally held to be a gambling device where the one who plays it "stands to win or lose money, trade or checks by hazard or chance." 27 C.J. 989. The hazard or chance may be only one of the elements therein, and, under this statute, it need not be the predominating element in the use of the machine, for the slot machines expressly excluded therein therefrom are machines in the use of which no element or chance whatever appears.

The elements of chance which here confront the one who plays this slot machine are: (1) that the answer to the question disclosed by the machine, after he deposits a coin in the slot thereof, will be within his general knowledge or information; and (2) that he can call to mind that answer within the twenty seconds he is allowed therefor. He would be a remarkably intelligent and well-informed person who could always, or even in most instances, be sure, before he sees the question, what the answer thereto is. For most young people, the hazard would predominate. Such a slot machine "attracts the youth, gets their money, and educates them in the gambling spirit," to prevent which is one of the purposes of the statute. Crippen v. Mint Sales Company, supra, 139 Miss. 87, 103 So. 504.

In order not to overload this statute, it should be borne in mind that some instruments into which coins are to be inserted through a slot therein are not within the definition of the term slot machine hereinbefore set out, but are instruments "operated on the principle of a slot machine; as a slot machine device on a telephone," Webster, op. cit., or a simple device for depositing fares on street cars, busses, etc. The term "slot machine" is both a noun and an adjective, and as here used is the former.

The decree of the court below should be reversed, and this slot machine declared to be within the prohibition of the statute.