November 29, 1963 —
December 20, 1963.
APPEAL from a judgment of the circuit court for Walworth county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by John Morrissy of Lake Geneva.
For the respondent the cause was argued by William A. Platz, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William L. Seymour, district attorney of Walworth county.
This is an appeal from a judgment of conviction for a violation of sec. 945.04 (2), Stats., referred to as the gambling-machine statute. A judgment of conviction was rendered against the defendants on May 10, 1962, in the county court of Walworth county. An appeal was taken to the circuit court, which court also found the defendants guilty. There was no trial de novo in the circuit court, since the parties presented the matter to the circuit court upon a stipulation of facts.
On January 17, 1962, two investigators for the beverage-tax division of the state department of taxation entered the premises of the defendant corporation located in the town of Lyons in Walworth county. The premises of the corporate defendant consist of a combination bar and bowling alley for which there was issued a Class "B" retail liquor and fermented malt beverage license. The individual defendant, John Binder, was the appointed agent of the corporate defendant pursuant to sec. 176.05 (13), Stats.
The investigators found on the premises a Williams Deluxe two-player "double barrel" plunger-type pinball machine, and such machine was available for play by the public. This pinball machine was put into operation by the insertion of a coin, and the reward to be gained from the machine if a high score was achieved was one or more automatic free plays. The free play had to be used or it was lost. The machine was not equipped with any device for releasing the free plays or for metering the number of free plays that the different players had been allowed. It was stipulated that "no prize other than the free plays awarded by the machine were given by the defendants for high scores on the machine." The circuit court held that the pinball machine in question was a "gambling machine" within the statutory meaning of that term.
It was further stipulated that the machine in question was taxable under federal tax statutes at a rate of $10 per year, whereas a "gaming device" under the federal tax statutes is taxed at a rate of $250 per year.
Both defendants have appealed to this court the judgment of conviction rendered against them by the circuit court.
" 945.04 PERMITTING PREMISES TO BE USED FOR COMMERCIAL Whoever intentionally does any of the following may be fined not more than $200 or imprisoned not more than 6 months or both:
". . .
"(2) Permits a gambling machine to be set up for use for the purpose of gambling in a place under his control."
" 945.01 DEFINITIONS RELATING TO GAMBLING. . . .
"(3) Gambling machine. A gambling machine is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine."
The question for our determination is whether a pinball machine which provides free plays as a reward to a player as a result of luck (plus some skill) is a "gambling machine" under sec. 945.01 (3), Stats.
The trial judge concluded that it was a gambling machine, and we agree. The legislative pronouncements together with the rulings heretofore made by this court make it clear that the reward of a free game is "something of value," as a matter of law. State v. Jaskie (1944), 245 Wis. 398, 14 N.W.2d 148; Milwaukee v. Burns (1937), 225 Wis. 296, 274 N.W. 273; Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335.
We recognize that other courts throughout the nation have considered this problem and have not been uniform in their conclusions. Many courts have held that a free play is a thing of value. State v. Bally Beach Club Pinball Machine (1956), 119 Vt. 123, 119 A.2d 876; Steely v. Commonwealth (1942), 291 Ky. 554, 164 S.W.2d 977; Giomi v. Chase (1942), 47 N.M. 22, 132 P.2d 715; Broaddus v. State (1941), 141 Tex.Crim. 512, 150 S.W.2d 247. To the contrary, however, there are a number of courts which have reached the conclusion that a free play is not a thing of value. People v. One Mechanical Device (1957), 11 Ill.2d 151, 142 N.E.2d 98; Crystal Amusement Corp. v. Northrop (1955), 19 Conn. Sup. 498, 118 A.2d 467; State v. Betti (1945), 23 N. J. Misc. 169, 42 A.2d 640; Wigton's Return (1943), 151 Pa. Super. 337, 30 A.2d 352.
The instant case is but a refinement of the Burns Case, supra, where the reward offered by the machine was in the form of tokens which could only be used to replay the machine. Whether the reward is a token or an automatic free play, we consider that the player gets the same gain and that in each case it is an item of value. As a result of his luck, he is enabled to play another game without the deposit cash, and this is a thing of value under the statute and our previous decisions.
The appellant seeks to distinguish the machine in the instant case from those involved in previous cases by pointing out that the present machine does not contain a "knock-off" device. This refers to a device on the machine by which the free games can be removed. The fact that the machine cannot be cleared of the free play unless one actually engages in the additional game may serve to reduce the machine's aptitude for commercial gambling. However, it does not relieve it of its inherent flaw. This reasoning applies equally to the absence of any meter in the instant machine which may be designed to tabulate the number of free plays won by the various players. Appellant urges that the Jaskie Case, supra, turned upon the fact that the machine in that case was metered; we reject such interpretation.
While the federal taxing authorities do not treat the instant machine as a "gaming device" and therefore do not require a $250 tax therefor, such interpretation is not controlling for purposes of sec. 945.01 (3), Stats. The applicable federal tax statute, 26 USCA, p. 241, sec. 4462 (a), does not denominate a "gaming device" as one which dispenses "something of value." The controlling definition is different from that contained in the Wisconsin statute.
If the Wisconsin legislature ever intended to exempt free-play machines, it clearly has not done so. In the 1957 session of the Wisconsin legislature, Bill No. 44, A., would have exempted the unrecorded right of replay, but it was not adopted. Comments, 42 Marquette Law Review (1958), 98, 101.
Finally, the appellant suggests that free plays should be regarded as de minimus. We are unable to treat the matter as petty.
By the Court. — Judgment affirmed.