The opinion of the court was delivered by: Platt, Chief Judge.
The United States, libelant in this libel action, seeks to
condemn and have forfeited five machines as "gambling device[s]"
which were allegedly transported in interstate commerce in
violation of the Johnson Act, 15 U.S.C.A. § 1172.
The respondents stipulated that the machines in controversy
were transported in interstate commerce. The only remaining
question presented by the briefs of both libelant and respondents
is the issue as to whether the machines are "gambling device[s]"
meaning of Title 15, § 1171, U.S.C. which reads as follows:
"(a) The term `gambling device' means —
"(1) any so-called `slot machine' or any other
machine or mechanical device an essential part of
which is a drum or reel with insignia thereon, and
(A) which when operated may deliver, as the result of
the application of an element of chance, any money or
property, or (B) by the operation of which a person
may become entitled to receive, as the result of the
application of an element of chance, any money or
"(2) any machine or mechanical device designed and
manufactured to operate by means of insertion of a
coin, token, or similar object and designed and
manufactured so that when operated it may deliver, as
the result of the application of an element of
chance, any money or property; * * *"
The five accused machines and a mechanical slot machine,
commonly known as a "one armed bandit", were all in evidence. The
mechanism of the machines was operated in court. The devices in
question are called "circus" machines and consist of wooden
cabinets about 27½ inches high, with a sloping front glass panel.
The machines are marked for amusement only, contain no pay-out
tubes, and operate electrically. The machine is started by the
turn of a knob which results in an electrical contact. There is
no "feel" in the knob and its position does not affect the
operation of the machine after electric contact has been made.
Once the play is started the player has no control over the
The upper portion of the glass panel contains a score count
register, a coin slot (except for two of the machines that are
operated by remote control), and a display of winning
combinations of circus animals with the number of replays for
each winning combination. The score count indicator adds and
subtracts the number of plays. The remainder of the glass panel
contains five horizontal rows of animals, each row consisting of
three columns; each column contains the figure of a different
animal. When play is started lights flicker behind the figures of
the various animals, finally stopping and illuminating one figure
in each column. If the illuminated figures form a winning
combination additional games for replay are scored on the count
register. The machines are set with the odds heavily against the
player to obtain the winning combinations.
The lights are controlled by disc-type rotary switches which
are propelled by an electric motor with a reducing gear box which
results in a motor speed of 11 or 12 revolutions per minute. The
motor turns a shaft upon which three rotary discs are located. As
each disc rotates contact is made with numerous buttons which are
connected to individual bulbs. Each time a disc contacts a button
a particular animal is illuminated. Each disc ceases its rotation
about one second apart, illuminating first an animal in the
left-hand column, then an animal in the center column, and
finally an animal in the right-hand column. The final combination
of illuminated figures determines whether the player has won or
At the trial the government introduced expert testimony to the
effect that the disc-type rotary switches propelled by a motor
with the insignia on the glass panel of the "circus" machines are
identical in operation and purpose to the reels and drums of
mechanical slot machines.
Respondents presented evidence to prove that "circus" machines
contain no reel or drum with insignia thereon; contain no pay-out
tubes; and that the mechanism in the "circus" machine is similar
to the mechanism in pinball machines.
Whether the "circus" machines fall within the statutory ban
must be determined by the language of the statute quoted above,
as well as the underlying intent thereof. In U.S. Code
Congressional Service, Vol. 2, 81st Congress, 2d Sess. 1950, at
the hearings on the legislation which gave the history and the
purpose of the legislation the following statement is found on
"Those favoring enactment of the bill argued that
Federal legislation was required to assist State and
local law-enforcement officers in the enforcement of
State and local anti-gambling statutes. They pointed,
particularly, to the existence of Nation-wide crime
syndicates which are securing a large share of ...