Appeal from the Circuit Court of Rock Island county; the Hon.
DAN H. McNEAL, Judge, presiding. Judgment reversed.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
This action was brought to obtain an order for the destruction of certain coin-in-the-slot mechanical devices on the grounds that they were gambling devices per se. The three petitions which were filed were consolidated by stipulation, approved by the presiding judge. The court heard the consolidated causes and upon a finding that these mechanical devices were not gambling devices per se entered judgment denying the petitions. This is an appeal from that judgment.
Six mechanical devices were seized by Herbert M. Lowry, Administrative Assistant to the State's Attorney, and two police officers, on the ground that they were gambling devices per se. Four machines were seized at H & H Music Company, Moline, Illinois, where they were to have been repaired. The numbers on three of the machines designated Circus Days were 573, 624 and 786, and the number on one machine designated County Fair was 442. One machine was seized at Fraternal Order of Eagles, Moline Aerie # 1222, Moline, Illinois, designated "Circus Days" but had no visible number. The sixth machine was seized at Moline Turners Society, Incorporated, Moline, Illinois, machine number 805, which was designated "Circus Days." Three petitions were filed asking for an order to destroy the machines. These three petitions were consolidated for hearing. At the trial, all machines were demonstrated to the trial court and one of them designated "Circus Days" was demonstrated to this court. Those seized at H & H Music Company were not in proper working order. Machines number 805 and 442 were demonstrated in detail, at the trial.
All of these machines were designed to operate in the same way (though the physical dimensions of "County Fair," machine number 442 differs from the other machines). The machines are of wooden construction. The face of the machine has a slanting glass panel. The upper portion of the glass panel contains a score count register, a coin slot for insertion of a dime and a display of winning combinations of circus animals with the number of replays for each winning combination. The remainder of the glass panel contains five horizontal rows of animals, each row consisting of three columns. Each column has a figure of a circus animal. The machines are marked "For Amusement Only." There are no pay-out tubes on the machines.
The machines are electrically operated. They are activated by the turn of a knob on the front of the machine. Once the play is started the player has no control over the device. When play is started lights flicker behind the figures of the various animals in the three columned, five horizontal rows. The flickering stops, in consecutive order from left to right, so that one animal in each of the three columns is illuminated. If the illuminated figures constitute a winning combination additional games for replay are scored on the play counter or register. This score counter or register automatically adds and subtracts the number of plays on the machine.
The flickering lights are controlled by disc-type rotary switches fixed upon a common shaft. Each time the disc contacts a button connected to a bulb, that bulb illuminates one of the animals on the glass plate. The disc controlling the left most column of animals stops first, then the center column and finally the third column. The animals which finally remain lit in each of the three columns are the combination which determines if the player has won any free games.
Before the activating knob will cause the machine to operate, there must be at least one game on the game counter or register. This game may be placed upon the game counter in one of two ways. The player can put the game on the game counter by inserting a dime in the appropriate slot. Each dime inserted will put another game on the machine. Also, on the left side of the machine is a lock-switch which is operated by the insertion of a key. By inserting a key and turning the lock, a switch on the inside of the machine is tripped and a game is registered on the game counter. Any number of games may be placed on the machine by this method.
If a player leaves any games on the game counter or register, there is a switch on the right side of the machine, which when turned off and again turned on, will automatically erase the games from the game counter. As an example, if the game counter shows zero, zero, five (five games) and this switch is turned off and then on, the game counter will then go automatically to zero, zero, zero (no games).
In addition to the game counter or register on the face of the machine, there are two registers or counters on the inside of the machine. The first of these registers keeps a record of how many games are placed on the machine by the key-lock-switch method described above. Thus, if the key is turned five times, this counter will register five numbers. The second counter or register on the inside operates only when games have been left on the game register and are erased by turning the switch on the right of the machine off and then on again, as described above. Thus, if the game counter reads zero, zero, five and the switch is turned off and then on the game register goes to zero, zero, zero, taking five games off the machine. The counter or register on the inside of the machine, connected to this erasing switch, will record five numbers corresponding to the number of games erased from the game counter or register. All of the above evidence was offered in behalf of the People and the defendants offered no evidence of any nature.
Plaintiffs contend that because of the particular design of these machines, with their similarity to slot machines, and because of the system of counters or registers, these machines have no practical use except for use as gambling devices under Sec. 2 of the Gambling Device Act; and that these machines are therefore gambling devices per se and contraband and should have been ordered destroyed. It is defendants' position that the defendants' devices are not gambling devices per se; that since the devices are not gambling devices per se, plaintiff must prove the device was one upon the action of which money is staked, hazarded, bet, won or lost.
This action was brought under Section 2 of the Gambling Device Act (Ill. Rev. Stat., chap. 38, pars. 341-343) which was enacted by the Legislature for the stated purpose of prohibiting the use of machines or devices for gambling purposes. A gambling device is defined as follows:
"Every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device and shall be subject to seizure, confiscation and destruction by any municipal or other local authority within whose jurisdiction the same may be found. 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."
The first sentence of the above statute was enacted in 1895 (Laws of 1895, p. 156) before the existence of modern day devices and machines, and the second sentence was added by the Legislature in 1953 (Laws of 1953, p. 929) apparently to override the opinion of People v. One Pinball Mach. Owned by Henry Fox, 316 Ill. App. 161, 44 N.E.2d 950, Petition for Leave to Appeal Denied, 321 Ill. App. XIII, wherein a pinball machine was held to be a gambling device within the definition of the existing statute. The Illinois Supreme Court has construed the Gambling Device Act as prohibiting machines or devices in connection with which money is staked, hazarded, bet, won or lost, such as slot machines, Bobel v. People, 173 Ill. 19, 50 N.E. 322; People v. One Device Known as a "Joker" or "Slotless" Slot Mach., 410 Ill. 318, 102 N.E.2d 122, and crap tables, Frost v. People, 193 Ill. 635, 61 N.E. 1054; People v. Cattaneo, 6 Ill.2d 122, 126 N.E.2d 692.
In 1957, our Supreme Court in People v. One Mechanical Device, 11 Ill.2d 151, 142 N.E.2d 98, held that a coin-operated pinball machine, which did not pay out money but only additional free games, and which was so constructed as to make the result of its operation depend, in part, upon the skill of the player, was not a gambling device within Section 2 of the Gambling ...