The opinion
Ray Thornton, Justice, dissenting. I respectfully dissent Jfom the majority’s holding that a device that offers video-poker for a fee is not a per se gambling device.
The majority correctly cites the applicable Arkansas gaming laws at Ark. Code Ann. § 5-66-101 through § 5-66-119 (Repl. 1997), and acknowledges the policy of the State to construe these statutes “with a view of preventing persons from evading the penalty of the law by changing of the name or the invention of new names or devices that now are, or may hereafter be, brought into practice.” Ark. Code Ann. § 5-66-101 (Repl. 1997). Our statutes make it a crime to possess any gambling device, defined as a device that may be “adapted, devised, or designed for the purpose of playing any game of chance, or at which any money ... may be won or lost.” Ark. Code Ann. § 5-66-104 (Repl. 1997) (emphasis added). Arkansas law does except “amusement devices,” as defined in Ark. Code Ann. § 26-57-402 (Supp. 1999). Whether such an exception passes constitutional muster is not an issue in this case because video- poker is not listed as an “amusement device” to be exempted from the laws prohibiting gambling.
Indeed, we held video-poker games to be gambling devices per se in Sharpe v. State, 350 Ark. 529 , 88 S.W.3d 848 (2002). Furthermore, per se gambling devices are not required to offer a payout or prize. See Stanley v. State, 194 Ark. 483 , 107 S.W.2d 532 (1937). The devices in this case require a fee and offer video poker. We specifically held that video-poker is not excepted from Ark. Code Ann. § 5-66-101 through § 5-66-119 as an “amusement device” under Ark. Code Ann. § 26-57-402 (Supp. 1999). Sharpe, supra.
It is of little consequence that the machines have the software for a greater number of games as well as video poker. Under the majority’s reasoning, the owner of machines prohibited in Sharpe, supra, could avoid penalty of law for possessing a gambling device by surrounding the offending games of chance, such as video-poker or slot machines, with a plethora of other games characterized as amusement devices. This defeats the purpose of Ark. Code Ann. § 5-66-101 through § 5-66-119. Arkansas law requires us to interpret the gambling statutes strictly to prevent new technologies or nomenclature from defeating the purpose of the laws. Thus, the inclusion of software allowing other games to be played on these video-poker machines should not immunize video poker from the provisions of Ark. Code Ann. § 5-66-104 ; this statute defines a gambling device as a device “designed for the purpose of playing any game of chance.” Certainly that is the situation here. If the General Assembly decides to re-define the definition, it is the body to do so, not this court by opinion.
For these reasons, I respectfully dissent from the maiority’s opinion.
I am authorized to state that Justice Glaze joins in this dissent.