Davis v. State , 77 Ga. App. 541 ( 1948 )

When in the trial of a criminal case, not only the evidence, but also the defendant's statement demands the verdict rendered, a new trial will not be granted even though the judge may have committed errors in refusing to grant a new trial on the remaining questions raised by the record. If the jury reached the only result which was legally possible in the case, the judgment of the trial court will not be reversed merely for the purpose of allowing the case to be heard again in order that the same result may be reached in a more technically correct manner. Williams v. State, 15 Ga. App. 311 (82 S.E. 817); Thomas v. State, 27 Ga. App. 38, 41 (107 S.E. 418); Frazier v. Swain, 147 Ga. 654, 657 (95 S.E. 211).

DECIDED JUNE 9, 1948. REHEARING DENIED JULY 28, 1948. The defendant, Godwin Davis, was charged with and convicted of a misdemeanor, in that he did "keep and maintain a scheme and device for the hazarding of money and other things of value, to wit, a slot machine known as a race-horse machine." He made a motion for a new trial, which was overruled, and he excepted.

The evidence was as follows: E. F. Howell, sworn for the State, testified: "On or about May 23, 1947, I was Sheriff of Muscogee County and at that time in line with my duties, I made a raid on a warehouse building in Columbus, relative to gambling devices. That warehouse building was on First Avenue in the 1200 block and was in Muscogee County, Georgia. Upon completion of that raid, I found 46 race-horse machines that belonged to Mr. Godwin Davis, the defendant on trial. I am generally familiar with the operation of machines such as this from general information and their manner of operation is as follows: they insert a nickel in the slot provided and they pull that lever and if you hit lucky then it pays off, and the pay-off falls in this pay-off slot. It requires money, a nickel, to make the machine operate and the person playing the machine gets different chances of winning and if he wins, the prize is money of different amounts. He doesn't win each time he operates the machine. That is a device for the hazarding of money. The nickel is put in the slot and you pull this handle exactly like you do on a one-arm slot machine and if you hit lucky on the number here, then it pays off, and the pay-off drops in this slot. You can put 1, 2, 3, 4, 5, 6, 7 nickels in there at one time but all of them do not win and these numbers on here determine whether they win or not. I am not too familiar with the odds that it pays off. There is a light that designates. This machine is one of those found on that raid and the other machines were similar to that one. In fact all of them, most all of them, are just like that one. From my experience, all that machine is used for is gambling."

On cross-examination, Sheriff Howell stated: "At the time I made the raid on the United warehouse, John Newberry and Chief Reese went with me. I was called in on the raid. We found it on the third floor of the warehouse, having gone up on the elevator, and when we got to the third floor there was no concealment of these machines. They were in plain view."

Question: "When you went to them you found them covered with dust, didn't you?" Answer: "There was dust on them, yes, sir."

"This slot was covered over with paper and at the last trial I took that paper off. With that paper on there, nickels could not be played in the slot without removing the paper. Neither this machine nor any of the others were connected with electricity when I got up there and in the shape they were in, they could not be played. They would have to be plugged in and this paper would have to be removed before a coin or nickels could be placed in there. I haven't seen this particular machine played. I have seen some others played. One in particular I remember from the group I seized was played in my presence. I selected that machine and it was plugged in with electricity. I don't remember whether it had paper on it or not. Some of them has paper and some doesn't. Several nickels were placed in there and this lever pulled. It didn't pay off. It was played a number of times in my presence and at no time did it pay off."

Question: "As a matter of fact, it couldn't pay off?" Answer: "It didn't pay off."

"I have never seen this machine pay off. I have never seen any of the machines that were seized pay off. I have never seen a prize won. I have never seen a chance taken on these machines. When I seized these machines I went up to the United Oil warehouse. I did not have a warrant but we asked for permission to go in there and it was granted by one of the employees of Mr. Reeves who, I understand from general information, owns that building. No case has been made against Mr. Reeves. I went up there without a warrant and took possession of these machines. It was a private warehouse and rented to Mr. Godwin Davis."

Mr. Payton Dunford, introduced by the State, testified: "I did not go with Mr. Howell when he raided a warehouse on First Avenue about the 23rd of May, 1947. I am generally familiar with the general operation of this machine and from my general information and my position as Deputy Sheriff, you can play from one to seven nickels by putting them in the slots and pulling the handle and the machine does the work and when the machine stops and pays off, if you put seven nickels in, somebody is bound to win; but if you only put one or two or three or four, there is a chance of you not winning. This roll stops and whatever it stops on, whether 1, 2, 3, 4, 5, 6, or 7, whichever one the nickel is on and if you have a nickel on Number 1 slot and the light stops on Number 1 here, you are paid corresponding number [of nickels] that stops on this roll here. They vary. Those numbers change from time to time — it rolls all the time the machine is operating. It pays off anywhere from two to thirty nickels. Then there is a long slot where it says here ``Daily Double' pays $5. They have a cashier box they call it — the cashier right here. The money falls in there. It takes a consideration to play the machine and there is a prize won. I have never seen one of them played that didn't give a prize. I have seen machines of this type operate and I have seen its operation when it paid a prize. I have never seen one of them used for anything else except gambling. There is no skill in it. From my experience and familiarity with such type of machine, it does not require any skill to operate it. I have played such type of machines."

Mr. Dunford testified as follows on cross-examination: "I do not have a familiarity with this machine but with machines of a similar type, not the particular machine there. If the slot that pays off through that cashier is taken out, then the machine will not pay off within itself. Well, I have seen it used as a gambling device without a pay-off slot. I have seen machines of similar type; I don't mean that same machine. That would be where bets would be made on each of the numbers and the bartender or somebody else, the cashier, in the place would pay off. The machine itself would not pay off. I have seen them where they would not pay off. Where they would not pay off, it would take some other instrumentality or some person to do the paying off, and not the machine itself. I have only examined the outside of this machine and I have not played it and it has not been played in my presence. I heard the Sheriff make the statement that it was played in his presence and that it did not pay off. I don't know how many times. I have never seen this particular machine played. Now, if this machine has a pay-off device on it and nickels are played in each of the slots and it is connected up and the lever pulled, it would have to pay off somebody; but you don't necessarily get the amount of money back that was played in it. You would be playing 35 cents and most of the time it pays off two nickels."

Question: "If nickels were placed in each of those slots and the lever pulled and if it had a pay-off mechanism in it, it would have to pay off some amount, would it not?" Answer: "I think so, yes, sir."

On redirect examination, the witness said: "I said I have seen the same type of machine played at other places, When the pay-off mechanism is not arranged so that it will pay off through a slot, then when you play the machine and it stops at the first winning number, if you have a nickel on that winning number you have to hold the machine as it is and call your counter man, or whoever pays off, and let him come in and pay off. It is generally operated with a man personally who pays off. That is the only way I have ever seen it operated."

Mr. Dunford, on recross examination, concluded: "The only way I have seen it operate is where a man pays — where somebody plays a nickel in there and when it stops at a certain number he calls the man and the man comes over and looks at the number and pays off. I have never seen that machine do that — not that one."

The machine identified by the sheriff was offered in evidence by the State and was admitted; whereupon the State rested. This machine displayed on its front side the figure of a race horse, being ridden by a jockey, just below which and to the right appeared a slot with the word "CASHIER" written over it. A diagram of the top of the machine is shown by the following sketch.

[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]

The defendant in his statement said, among other things, that: "These machines belong to me. . . All I do is buy and sell them; and I had them over there just on storage in this warehouse." He also said that he had never operated the machines; that they were covered and stuffed with paper to keep the dust out; that none of them had any "pay-out units" on them; and that, at the time the sheriff seized them, it was impossible to put any nickels in the slots to play them and impossible for the machines to operate and pay off. The defendant, through the excellently argued and neatly prepared briefs of his counsel, contends that his forty-six machines here in question never paid off automatically, never delivered a prize, and in fact, could not do either because they did not have the machinery or mechanism necessary to do that act or operation; that all of which foregoing means that they were not "gambling devices per se;" that a machine, which is not a gambling device per se, becomes an instrument of crime only when put to a criminal use; and that, in addition to there being no evidence that the machines here were put to a criminal use, there was no proof that a prize would be given in connection with their operation.

The deputy sheriff, Dunford, testified that he was generally familiar with the general operation of this machine; that, from his general information and from his position as deputy sheriff, he knew that a machine of this type could be operated so that the person playing it, when he won a prize by the playing thereof, would be paid off in either one of two ways: (1) the machine itself could pay off the prize money by dropping it through the pay-off slot into an outside opening or box on the machine, which box is called the "cashier box," thus delivering the prize money to the player without the aid of other instrumentalities or persons in paying off, or (2) if the pay-off slot through which the prize money is dropped into the mechanical cashier is taken off, the machine itself could not pay off the prize but, in such case, it would take some other instrumentality, or some person, such as the bartender or cashier, to do the paying off; and that: "I said I have seen the same type of machine played at other places. When the pay-off mechanism is not arranged so that it will pay off through a slot, then when you play the machine and it stops at the first winning number, if you have a nickel on that winning number you have to hold the machine as it is and call your counter man, or whoever pays off, and let him come in and pay off. It is generally operated with a man personally who pays off. That is the only way I have ever seen it operated. The only way I have seen it operate is where a man pays — where somebody plays a nickel in there and when it stops at a certain number he calls the man and the man comes over and looks at the number and pays off."

The sheriff testified in part that this machine was one of those found in the warehouse and that the others were similar; that all the machine was good for was gambling; and on cross-examination, he testified in part as follows: "One in particular I remember from the group I seized was played in my presence. I selected that machine and it was plugged in with electricity. I don't remember whether it had paper on it or not. Some of them has paper and some doesn't. Several nickels were placed in there and this lever pulled. It didn't pay off. It was played a number of times in my presence and at no time did it pay off." And when he was asked the question: "As a matter of fact, it couldn't pay off?" he replied, "It didn't pay off."

We think that this quoted testimony when considered as a whole in connection with the various parts thereof, particularly that of Deputy Sheriff Dunford, does not contradict the part of the testimony of both the sheriff and the deputy sheriff in which they stated that the machine was a gambling device. Its effect is merely to say that the machine, when used in the second of the two methods above stated, did not and could not deliver the prize money, which had already been won by the playing of the machine itself, because the conduit through which the prize money would have otherwise traveled to the winner was removed or was stopped up with paper. Such quoted testimony left uncontradicted the testimony of the deputy sheriff that, in the case of the machines which he had observed in operation, the delivery of the prize money was generally made by this second method above stated — that is, through the hands of a person; nor did it contradict the testimony of either the sheriff or the deputy sheriff, who were the only witnesses in the case, that it was an apparatus known as a horse-race machine which is operated by depositing money in the slot or slots therein, and then pulling the lever; that thereupon the machine begins to operate and that the operation culminates in the registering of the amount of prize money, if any, which is awarded to the player by the playing of the machine itself. The prize money having been won by the playing of the machine, the game of chance itself is over; and the delivery of the money to the winner, whether by a natural person or by a mechanical device which is a part of the machine itself, does not change the fact that the machine is an apparatus or device "by which a person depositing money therein may, by chance, get directly or indirectly money or articles of value worth either more or less than the money deposited . . and can not be treated as one kept only for amusement." Elder v.Camp, 193 Ga. 320, 321 (18 S.E.2d 622). The removal of that part of the machine called a "payoff slot," or the stopping-up of the slot with paper, did not change or destroy the character of the machine from that in which it was originally constructed, namely a gambling device. It falls within the purview of Code § 26-6502, which is: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." The following words in Elder v. Camp, supra, are also applicable and appropriate here: "Under the quoted terms of the statute, it is made unlawful merely to ``keep' such a ``device for the hazarding of any money,' and it is not necessary to show a further violation by maintaining, employing, or carrying on such a ``scheme or device' by active operation." The prima facie evidence of the guilt of such owner or operator in possession is further emphasized in the same case where it is said that: "The keeping of [such an apparatus or device] of the character described being unlawful, ordinarily and prima facie, where an owner or operator is found in possession of such a machine, the apparatus is contraband," and is a thing outlawed by our statute and subject to forfeiture and destruction upon a lawful seizure by the officers. See also People v. Belsky, 177 Misc. 125 (29 N. Y. Supp. 2d, 535). We think that it was unlawful to "keep" such forty-six gambling devices irrespective of the particular purpose for which the defendant kept all of them or any one of them — whether for storage in the warehouse only or otherwise.

The facts of this case differentiate it from those ofWilliams v. State, 65 Ga. App. 843 (16 S.E.2d 769), andChilds v. State, 70 Ga. App. 99 (27 S.E.2d 470), cited by counsel for the plaintiff in error in that in each of those cases the machines in question were of the type commonly called "pin-ball machines." In the operation of that type machine the player is given five balls with which to exercise his skill in attaining a high score, and the element of skill involved offers an incentive to persons to play the machines even though no prize be offered; whereas in the operation of the machines here in issue there is no element of skill involved. A person would not insert a nickel in the machines merely to see the lights flash or, as a matter of curiosity, to ascertain upon which picture of a horse the machine would permit the spinning light to stop; and, as was stated by the sheriff and the deputy sheriff, the machines here are absolutely worthless except as a game of chance, thus becoming a "gambling device per se."

In the instant case, not only the evidence, but also the defendant's statement demanded the verdict rendered and a new trial will not be granted, even though the judge may have committed errors in refusing to grant a new trial on the remaining questions raised by the record. If the jury reached the only result which was legally possible in the case, the judgment of the trial court will not be reversed merely for the purpose of allowing the case to be heard again in order that the same result may be reached in a more technically correct manner. Williams v. State, 15 Ga. App. 311 (supra); Thomas v. State,27 Ga. App. 38 (supra); Frazier v. Swain, 147 Ga. 654, 657 (supra).

Judgment affirmed. Gardner and Townsend, JJ., concur.