Moore v. Brett , 193 Okla. 627 ( 1943 )

A money slot machine is a nuisance per se, being usable for no lawful purpose. There is no contention herein that the machine was not forfeitable without a jury trial.

If money in a slot machine is an integral part of the machine, there would have been no reason for the Legislature providing specifically for its forfeiture. It would be forfeitable along with, and as a part of, the machine. This is the holding of the Idaho court. State v. McNichols (Idaho)117 P.2d 468.

Our Legislature evidently thought, as I do, that money in a slot machine is not an actual part of the machine in law or fact, and, therefore, recognizing that the money therein would not be forfeitable at all without provision therefor, made it forfeitable. All property not a nuisance per se may be forfeited and confiscated only after trial by jury when demanded — money is ordinarily used for lawful and useful purposes. The money in question, not being a part of the machine, may not be forfeited in a summary proceeding and without a jury trial if demanded. See Keeter v. State,82 Okla. 89, 198 P. 866; State v. Falgren, 176 Minn. 346, 223 N.W. 455; Dorrell v. Clark, 90 Mont. 585, 4 P.2d 72, 79 A.L.R. 1000; Chappell et al. v. Stapleton, 58 Ga. A. 138, 198 S.E. 109.

Where a question of fact exists as to the unlawful use of property adaptable to, and ordinarly used for, lawful purposes, the right of a jury trial is inviolate. Article 2, sec. 19, Constitution. Money played into a slot machine without the consent of the owner is not forfeitable. However, an operator of slot machines in violation of the law of the state cannot recover money unlawfully played into slot machines operated by him; such a person has no standing in court.

The answer of the plaintiff in error in this case admits the ownership of the machines and that the money contained therein was played into the machines during the course of her operation. No question of fact was raised by the plaintiff in error that brought her within the constitutional provision guaranteeing her the right of trial by jury.

I, therefore, dissent to the holding of the majority that the money in the slot machines was an integral and inseparable part of the machines and a part of the nuisance to be abated by confiscation; otherwise I concur in the opinion.