The PEOPLE v. One Mechanical Device

Mr. Justice Davis, dissenting:

I dissent from the opinion of the majority in this case because it ignores the plain language of the statute and much of the evidence which is determinative of the issue.

Under the law prior to1 the amendment of the Gambling Device Act in 1953, the defendant device, without question, would have been within the proscription of the statute. (People v. One Pinball Machine, 316 Ill. App. 161 ; Petition for Leave to Appeal Denied, 321 Ill. App. XIII.) The 1953 amendment added to both sections 1 and 2 of the act the following words: “A coin-in-the-slot operated mechanical device played for amusement which rewards the player with the right to’ replay such mechanical device, which device is so constructed or devised as to make such result of the operation thereof depend in part upon the skill of the player and which returns to- the player thereof no coins, tokens or merchandise shall not be considered to be a gambling device within the meaning of this Act and any right of replay so obtained shall not represent a valuable thing within the meaning of this Act.” (Ill. Rev. Stat. 1953, chap. 38, pars. 341, 342.) In order to fall within the amendatory exception, such device must be a coin-in-the-slot operated mechanical device, (1) played for amusement, (2) which rewards the player with the right to replay, (3) which is so constructed or devised as to make the result of the operation thereof depend in part upon the skill of the player, and (4) which returns to1 the player thereof no coins, tokens, or merchandise. Thus, as the Appellate Court stated, the “above conditions are prerequisites to its application, that is, before the amendatory exception can take the instant device out of the statute, all conjunctive conditions must be met, and if any be lacking the device does not come within the amendatory exception.” People v. One Mechanical Device, 9 Ill. App. 2d. 38, 46.

In determining whether the device in question meets the terms of the exception, it is well to' remember that amendatory exceptions and provisos in a statute are designed to qualify or limit what is otherwise generally affirmed in the body of the act; that they are to be strictly construed; and that one who asserts that he comes within a statutory exception, must prove such fact. Doubler v. Doubler, 412 Ill. 597, 600 ; State Public Utilities Com. v. Early, 285 Ill. 469 .

The statute expressly provides as one of the conditions of the exception that the device be “so constructed or devised as to make such result of the operation thereof depend in part upon the skill of the player.” It is not enough that the result may be somehow affected by what the player may do to the machine; the machine must be constructed or devised to make the result of its operation depend in part on the skill of the player. The majority has overlooked this plain requirement.

The only acts of skill related or demonstrated by witnesses for the defendants consist of what they term “gunching” and “hulaing,” which is the jargon used to describe the acts of pushing, pulling, shoving, hitting, shaking or tipping the machine, and which are supposed to have some effect on the course of the steel ball as it proceeds downward on the playing surface. The opinion of the Appellate Court carefully analyzes the testimony and it will not be repeated in detail here. Suffice it to say, so far as “gunching” and “hulaing” are concerned, these acts have little, if any, effect on the course of the ball before the tilting mechanism with which the machine is equipped becomes operative and voids the particular play. This tilting mechanism is adjusted by the owner of the machine in advance and the player has no control over it whatever.

Of overriding importance is the fact that there is no proof that the machine is constructed or devised for “gunching” or “hulaing.” Even though the machine may be affected by acts of external violence, it was devised and constructed so that it could be operated by inserting a dime, pushing a button and pulling the plunger. When thus operated nothing of any consequence remains but the element of chance. It was not constructed in such a way that the result of its operation depends on player skill in whole or in part.

This machine is an extremely complex mechanism. The first dime deposited gives the player the right to play five balls, and additional dimes, up to 500, may be played, which may or may not change the odds of the game. The player has no control over the action of the machine resulting from the deposit of additional dimes; no skill, but rather only chance, mechanically determined, is involved. This feature of the machine is similar to the slot machine; yet the only legitimate use to which it can be employed is the award of additional free games to the player. Credulous though I may be, it is beyond my power to believe that such machine will be so used and is not a gambling device. The Appellate Court in deciding this case, (9 Ill. App.ad 38,) aptly stated: “While it does not appear from the evidence in this case still it is common knowledge that the so-called free game is frequently but a subterfuge, and that the common practice is for the proprietor, when the player obtains a winning score, to pay off in money or merchandise. It is also common knowledge that the machine itself is sometimes used by players to determine who shall buy the drinks or pay for refreshments, cigars or lunch and when so used it is a gambling device within the meaning of our statute. The fact that there is no testimony in this case that the machine in controversy was being so operated, is not the test of whether it is a gambling device.”

In People v. One Device, 410 Ill. 318 , an appeal was brought to this court requiring determination of whether the machine under consideration was a gambling device under the then existing statute. At page 322 this court Mated: “The only debatable question in this case is whether this machine is such a gambling device, and that is a question of fact which raises no question of constitutional construction.”

In the case at bar, the Appellate Court made a factual determination from the evidence that the machine in question was a gambling device and this court is barred under the provisions of the Civil Practice Act (Ill. Rev. Stat. 1955, chap, 110, par. 92(3) (b) from re-examining and redetermining such fact. This it has done in its opinion. I believe this machine is a gambling device under the provisions of the statute, and that the judgment of the Appellate Court should be affirmed.

Schaefer and Hershey, JJ., concur in the foregoing dissenting opinion.