Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.
This is an appeal from an order of the district court condemning as forfeited to the United States five "Circus" machines pursuant to 15 U.S.C.A. § 1177, on the ground that they were gambling devices within the meaning of 15 U.S.C.A. § 1171, which had been transported in interstate commerce in violation of 15 U.S.C.A. § 1172.
The action below was a libel of information filed by the United States (libelant-appellee) against Five Gambling Devices, alias "Circus" machines, and the owners thereof (respondents-appellants). The cause was tried to the court. The parties agreed that the machines were the property of appellants and were transported in interstate commerce.
The one issue contested in the trial below and presented on this appeal is whether the five machines in controversy are gambling devices within the meaning of Section 1171(a)(1) of the Johnson Act, Title 15 U.S.C.A. 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; of * * *."
The machine is encased in a conventional box with a slanting glass face on the upper front part, on which are shown various combinations of animals with numbers indicating the number of free plays for each winning combination. On the lower part of the glass face are 15 rectangles, in each of which is an animal character, either an elephant, lion, hippopotamus, cat or monkey. Below this is a metal knob the turning of which activates the machine. The machine may be adapted to operate by insertion of a coin or by remote control. In the upper right corner, inset behind the glass face, is a meter which indicates through a clear opening, the total number of free plays accumulated to the credit of the operator at any time during the play.There is no slot or receptacle for the delivery of the money or property. When play is started lights flicker behind the figures of the various animals in the rectangles, finally stopping and illuminating one figure in each of the three columns. If the illuminated figures form a winning combination, additional games for replay are scored on the meter.
The interior of the box holds the electrical mechanism designed to operate the device. The lights are controlled by disc-type rotary switches propelled by an electric motor which turns a shaft on which the rotary discs are mounted. As each disc rotates it makes contact with a stationary disc containing several buttons which are connected by wires to individual light bulbs. Each time a disc contacts a button a particular animal character on the front glass plate is illuminated. Other parts of the electrical mechanism control the rest of the operation of the machine. After the player turns the knob to start the play the entire operation of the machine is electrically driven and the player has no control over the resulting winning combinations and no skill is involved.
It is conceded by the government in oral argument that the question of whether or not the machines are coin operated is of no consequence in this appeal. Likewise, it is quite apparent that the person who operates the machine may become entitled to receive money or property as the result of the application of chance. Cf. United States v. Korpan, 1957, 354 U.S. 271, 77 S. Ct. 1099, 1 L. Ed. 2d 1337. The issue under consideration here is, therefore, narrowly limited to whether or not we have a machine "an essential part of which is a drum or reel with insignia thereon."
This device has no drums or reels and the only insignia are the animal characters on the glass front face. In this connection, the court below stated in its finding No. 9 "[that] the disc-type rotary switches propelled by a motor with the insignia on the glass panels of the 'Circus' machines are identical in operation and purpose to the reels and drums of mechanical slot machines." The court further stated in its finding No. 11 that "in principle the operation of the 'Circus' machine and the slot machine and the so-called 'one armed bandit' are identical; that the 'Circus' machines have discs which are mounted on a shaft; that the left disc stops first, then the middle disc, and then the disc on the right, like the reels on a slot machine; that instead of rotating drums on which appear the familiar fruit and bell insignia, the rotating discs in a 'Circus' machine make electrical contact as they revolve, illuminating the animals that are printed on the glass panel; that both are entirely dependent on the element of chance."
Among the conclusions of law stated by the trial court are the following:
"3. That said gambling devices, alias 'Circus' machines, contain reels and a band or wiper which are similar in effect to the drums in a mechanical slot machine and which are a mere subterfuge to avoid the definitions contained in Section 1171, Title 15 United States Code."
"4. That the five gambling devices, alias 'Circus' machines, are gambling devices and are either so-called slot machines or mechanical devices, an essential part of which are drums or reels with insignia thereon and by the operation of ...