Appeal from the Circuit Court of Rock Island county; the Hon.
LEONARD E. TELLEEN, Judge, presiding. Affirmed.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT. Rehearing denied February 14, 1956.
On July 9, 1954 the State's Attorney for Rock Island County petitioned the Circuit Court requesting an order directing him to destroy a certain pinball machine. The petition stated that the machine had been seized by a police officer and turned over to the State's Attorney, and that it was a device upon which money is staked, hazarded, bet, won, or lost, and was manufactured and made for the purpose of gambling uses and had no other lawful purpose, and was subject to seizure and destruction as the law provides for gambling devices.
Subsequent to the filing of the petition certain persons moved to intervene, which motion was allowed and they were made parties defendant. After preliminary proceedings, not involved in this appeal, they filed their answer denying that the machine was a gambling device. After a hearing before the Court, with both sides presenting evidence, which included a demonstration of the machine in operation, the Court entered an order on March 2, 1955 adjudging that the pinball machine was a gambling device, subject to seizure, and ordered its destruction.
The proceeding was brought under Sec. 2 of what is popularly known as the Gambling Device statute (Ch. 38, Ill. Rev. Stats. 1953, pars. 341-343 [Jones Ill. Stats. Ann. 37.271-37.273]), and the sole question presented is whether a pinball machine of this type is subject to the proscriptions of that statute.
That Act, originally passed in 1895, consists of three sections. Section 1 (Par. 341) provides penalties for persons who operate, keep, own, rent, or use, inter alia, slot machines or any other device upon which money is staked or hazarded, or into which money is paid or played upon chance, or upon the result of the action of which money or other valuable thing is staked, bet, hazarded, won or lost. Section 2 (Par. 342) declares such machines to be gambling devices and authorizes the seizure, confiscation, and destruction of such machines and devices by duly constituted authorities. Section 3 (Par. 343) provides for penalties as against various named types of people who have to do with the premises where the gambling devices are located or have to do with the devices themselves. This statute remained unchanged from its enactment until July 7, 1953, when Pars. 341 and 342 were amended, and, as so amended, the statute was in effect at the time material hereto and is now in effect in its original form, subject only to the 1953 amendment.
Construing the statute prior to the 1953 amendment, we held in People v. One Pinball Machine, owned by Henry Fox (1942) 316 Ill. App. 161, that a pinball machine, similar in most essential respects to the one here ordered destroyed, was a gambling device, fell within the ban of the statute, and was subject to destruction. That was in 1942. The amendment of 1953, however, calls for a re-examination of the problem.
This amendment to both Sections 1 and 2 (Pars. 341 and 342) adds the following to the original provisions, previously summarized:
"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."
In People v. One Pinball Machine, supra, where the cases and authorities were extensively reviewed, we based our affirmance of the destruction order on the fact that the free play feature represented "a valuable thing," and since the device in question there had the requisite mechanical features defined in the statute and its operation depended upon chance all aspects of the then statute were satisfied to justify seizure and destruction. We are called upon to determine now whether or not the instant device satisfies in all respects the statute as amended in 1953, which was the basis of the present destruction order. The parties have not referred us to an Illinois case directly in point arising since the amendment, and we know of none. City of Chicago v. Wickey (1954) 4 Ill.2d 423, referred to by the defendants, involved a new tax statute of 1953 by which the State imposed a privilege tax upon certain coin-operated devices (Ch. 120, Ill. Rev. Stats., 1953, par. 481 b.1-481 b.12 [Jones Ill. Stats. Ann. 119.973(1)-119.973(12)]), and a city ordinance prohibiting certain pinball games, and held that the 1953 Act did not by implication repeal a section of the Cities and Villages Act authorizing a city to prohibit such games; it apparently was undisputed in that case that the device fell within one of the types described by the 1953 Act (though which type is not set forth) and also fell within the city ordinance, the facts had been stipulated, and the only question was the legal question of whether there was or was not a repeal by implication; the details of the operation of the device are not set forth therein; in the instant case the question involved is not the same, the facts are disputed, there is no stipulation, and the details of the operation of this device are fully gone into in the evidence as we shall hereinafter set forth.
This particular machine bears the identifying name of Bally Dude Ranch and is manufactured and/or sold by the Bally Manufacturing Company of Chicago, Illinois. It is apparent from a reading of the record and viewing its actual operation in this Court, a demonstration having also been had before us, that it has the usual features beguilingly present in most pinball machines, though this one seems to be more ingeniously constructed than most. It is mounted on four legs, stands about three and one-half feet high, and has an inclined horizontal playing field, dotted with numerous pegs, bumpers, rubber rings, spring bumpers, lights, and twenty-five numbered holes, all artistically decorated, and attractive. This, of course, is all under glass. A vertical score board or back plate or glass rises at the inclined rear end above the playing field. On this back plate or glass are three squares with numbers in them. The square to the left contains a series of numbers, twenty-five in all, corresponding to the numbered holes on the playing field. In this square there are five rows of five numbers each and it is designated as the First Card. Upon depositing a single dime this card lights up. The square on the right of the vertical score board is the Second Card and it is like the First Card. The Second Card lights up after depositing a second dime and gives the player twice the opportunity to score free games, which free games accord the player the right to replay without charge. Also on the vertical score board is a square in the center with nine numbers in three rows of three each and it is called the Super Card. The Super Card works on the same idea as the First Card, except that three-in-a-row on it scores as many free games as four-in-a-row on the First Card, and if the four corner numbers on the Super Card are lit a larger number of free games is won. At the left top of the vertical score board is another square called "First and Second Card Corners Score 200," and, when this is lighted by depositing a dime, then lighting the four corner numbers of the First or Second Card wins 200 games, but it is possible this First and Second Card Corners square will not light up when a dime is deposited, the player having no control over that circumstance.
At the front, or player's end of the device, on the right is a rubber tipped steel plunger mounted in a spring, with a knob on the end, so that by pulling it back and releasing it, it acts as a catapult. Below the plunger is a "ball guide plate" scored with several lines on which a player can measure how far out he pulls the plunger. One of the defendants' witnesses says the design of the knob of the plunger is meant to give a player the maximum amount of "sensitivity" in gauging his shot. The dime deposited not only lights the First Card but releases five steel balls, the first of which immediately appears in a channel in front of the plunger. Releasing the plunger catapults the ball through a channel running approximately the length of the machine to the top end of the playing field. The ball comes out of the channel onto the playing field at a point at the rear, farthest from the player, then immediately rolls by force of gravity down the field, being deflected erratically and unpredictably in its downward course by the various impediments already described, until it either comes to rest in one of the numbered holes, or into a free ball hole, or drops out of play without scoring. If the ball goes in a given numbered hole an electrical contact is made causing a corresponding number, or numbers, on the vertical score board to light up. So far as the First Card is concerned the player hopes to light up the numbers in the card consecutively, either three or four or five in a line, diagonally, vertically, or horizontally, and, if so, a winner is scored, much as in the game of Bingo. If two dimes are played the Second Card illuminates and the purpose is the same as with the First Card. The other cards operate on the same general principle. The object of the various combinations, plus innumerable added features, is to increase one's chances to win free games, and these are scored by a computing device in a little windowed square to the top right of the vertical score board. Thus the player knows, at any given time, the total number of free games to his credit, if any.
The game features are innumerable, and are cleverly designed. One way, for example, by depositing dime after dime and/or pressing various buttons, at a certain point in the game select certain features by which if he thereafter lights less than the usual amount of numbers in a row he nevertheless scores the equivalent of the usual amount of numbers, may increase the odds, or may obtain extra balls. Sometimes the deposit of a dime achieves nothing, and no change takes place, which is to say that an additional payment does not automatically entitle the player to further odds, or game features, or extra balls, those are circumstances the player has no control over, as was admitted by more than one of the defendants' witnesses, that is pure chance. One of the defendants' witnesses said that each time a dime is deposited a change, completely uncontrolled by the player, in the electrical system occurs, but at times those changes, whatever they may be, occur with, strangely, no visible change on the vertical score board. All game features and odds are represented by appropriate figures illuminated on the score board. For a further example, depositing extra dimes may, but not necessarily does, light up a couple of stars at the lower left and right corners of the score board, and, if that occurs, then, if one of the balls thereafter simply rolls over a corresponding spot on the playing field, numbers 8 and 23 will light up, which is equivalent to the ball dropping in the 8 or 23 holes. Whether those stars do or do not light up on the deposit of coins is a circumstance the player has no control over. In fact, other than the First and Second Cards lighting up upon the deposit of the first and second dimes, the player does not know what is going to happen on the back of the machine and cannot control it.
The machine is equipped with a "tilt" device like a plumb bob which renders it inoperative when jolted too hard, voids the game, and disqualifies the player until an additional dime is inserted starting a new play. Various electrical devices are housed immediately behind the score board and they determine the odds and the frequency of occurrence of the added game features, over which the player has not the remotest control. If replays or free games have been won then the player thereafter pushes buttons instead of depositing coins in the playing of the machine. All in all, it is an intricate and attractive piece of machinery.
Does this device fall within the amendatory exception to the Gambling Device statute descriptive of devices which are not to be considered gambling devices and hence not subject to seizure and destruction? In order to come within that exception, the device must be (1) a coin-in-the-slot-operated mechanical device, (2) played for amusement, (3) which rewards the player with the right to replay, (4) which is so constructed or devised as to make the result of the operation thereof ...