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UNITED STATES v. FIVE GAMBLING DEVICES

July 3, 1957

UNITED STATES OF AMERICA, LIBELANT,
v.
FIVE GAMBLING DEVICES, ALIAS "CIRCUS" MACHINES, AL CROSS AND HAROLD BROWN, D/B/A UNITED DISTRIBUTING COMPANY, RESPONDENTS.



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]" within the 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
  property; 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 device.

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 lost.

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 page 4243:

    "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 ...

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