Prickett v. State , 88 Okla. Crim. 213 ( 1948 )

Permission was granted to counsel representing parties allegedly operating machines similar to the one out of which this prosecution was instituted to file briefs amici curiae in support of the petition for rehearing filed by the defendant.

Counsel in their briefs have stated that there are a large number of these machines in operation in Oklahoma in drugstores, cafes, pool halls, and other establishments, and that some cities have licensed their operation.

It should be borne in mind that since the passage of the law in 1939, 21 Ohio St. 1941 § 964[21-964] et seq., prohibiting the operation of these machines, this court has twice held that pinball or marble machines operated for amusement only were prohibited by the act. Ex parte Davis, 66 Okla. Crim. 271, 91 P.2d 799; Couch v. State, 71 Okla. Crim. 223, 110 P.2d 613.

To have held otherwise would have nullified the legislative act which prohibited the setting up of these machines "to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement, or any representative of value or a thing of value." 21 Ohio St. 1941 § 970[21-970].

It is apparent that the Legislature intended to absolutely prohibit the operation of these machines. No plainer language could have been employed to express the legislative intent to prohibit the operation of these machines irrespective as to whether they were played for free games, prizes, or merely for the amusement of the player.

It was properly a function of the Legislature to determine in the exercise of the police power whether the operation of such machines tended to be injurious to the health, safety, morals, or general welfare of the public. It is not within the power of the court to strike down a legislative enactment unless it is clear that there is no reasonable basis upon which the act might be sustained. There is a strong presumption in favor of the constitutionality of every legislative act, and in so far as slot machines are concerned, it is a matter of common knowledge that they are generally adapted to fast, easy gambling; that the label "for amusement only" placed on many machines is a subterfuge to deceive enforcement officials and hamper them in prosecutions for gambling. The Legislature with a full knowledge of these conditions has prohibited the operation of such machines for amusement or for any other purpose.

Counsel have reiterated that the opinion herein is contrary to the ruling in Delano v. State, 82 Okla. Crim. 258,168 P.2d 659. There is a reasonable basis for this contention in view of some of the statements made in the Delano case. As was stated in the opinion herein, there has been a noticeable absence of briefs in the adjudicated cases. Our opinion and research in the absence of thorough briefs on behalf of the state in the former cases have been directed to the point raised by the defendant in each of said cases. We have made a more thorough research into the decisions of courts of other jurisdictions and the statutes of other states and the legislative background of the 1939 act in the instant case than in any of the others. If the state had fully briefed the Delano case and had argued their cause with their known ability and enthusiasm, the Delano opinion might have been decided on another basis than the one which was discussed.

To avoid any confusion in the application of the rules of law set forth in the opinion in the instant case, and in the other cases construing the 1939 act, it is ordered that the decisions in those cases in so far as they conflict with the opinion herein, if there is any conflict, are modified to conform to the opinion herein.

The petition for rehearing is denied and the mandate is ordered to be issued immediately.

BAREFOOT, P. J., and BRETT, J., concur.