Territory of Hawaii v. Shinohara , 42 Haw. 29 ( 1957 )

OPINION OF THE COURT BY

MARÜMOTO, J.

The Territory filed in the district court of South Hilo a criminal complaint in which it charged defendant with conducting a lottery in violation of section 11341 of the Revised Laws of Hawaii 1945. The complaint, as supplemented by a bill of particulars, alleged that defendant operated a business known as “Elsie’s Fountain”; that he set up in his business establishment a pinball machine known as “Bally Dude Ranch”; that the pinball machine is a device on which games are played, the object of which is to attain high scores by propelling metal balls to a playing surface and causing the balls to drop into openings denoting different scores; that the device is put into operation by the insertion of a nickel into a slot provided for that purpose; that a player wins free games for attaining certain high scores; that high scores are attained principally by chance; that defendant allowed one David Branco to play the device; that David Branco won sixty-five free games; and that defendant paid David Branco $3.25 in lieu of the free games.

Defendant demurred to this complaint on the ground that the allegations were insufficient to charge a violation of section 11341 or the violation of any other criminal statute of the Territory. The district magistrate sustained the demurrer. The case is before this court on a writ of error sued out by the Territory.

It is generally stated that a scheme that includes the three elements of consideration, chance and prize constitutes a lottery. (Territory v. Sur, 39 Haw. 332.) The complaint alleges all of these three elements. Defendant, however, contends that under the definition of lottery in section 11340 of the Revised Laws of Hawaii 1945 a fourth element is necessary, namely, participation for the prize by more than one person, and that in the operation of the pinball machine described in the complaint only one person played for the prize.

Section 11341 provides as follows:

“Sec. 11341. Maintaining or assisting, etc. Every person who contrives, prepares, sets np, draws, maintains or conducts, or assists in maintaining or conducting any lottery is guilty of a misdemeanor.”

Lottery is defined in section 11340 as “any scheme for the disposal or distribution of property by chance among persons who have paid or promised to pay any valuable consideration for the chance of obtaining the property, or a portion of it, or for any share or any interest in the property upon any agreement, understanding or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, che fa, pakapio, gift enterprise or by whatever name the same may be known.” (Emphasis supplied.)

Defendant bases his contention on the language which is quoted in italics in the foregoing definition. We agree with defendant. We construe the expression “among persons who have paid or promised to pay any valuable consideration” to contemplate a scheme in which more than one person pay or promise to pay a valuable consideration for the chance of obtaining the prize or prizes. The expression “for the disposal or distribution” means that if there is only one prize such prize will be disposed of to one winner among the persons who have paid or promised to pay the consideration for the chance of obtaining the prize and if there are a number of prizes such prizes will be distributed to a number of winners among such persons. In other words, under a lottery as defined in our statute a participant for the prize competes against other participants for the chance of obtaining the prize. The examples given in our statute, such as raffle, che fa, pakapio, and gift enterprise, all involve participation by more than one person for the prize.

It is not so with a pinball machine. In the playing of a pinball machine, only one person pays a consideration for the chance of obtaining the prize. Assuming that the playing of the device is a game of chance and not a game of skill, the player pits his luck not against other players but against the person who provides the device.

There is no prior decision of this court involving a pinball machine. We find several decisions in other jurisdictions which have considered the legality of the operation of such devices. Among such decisions are Middlemas v. Strutz, 71 N. D. 186, 299 N. W. 589; Gayer v. Whelan, 59 Cal. App. (2d) 255, 138 P. (2d) 763; State v. Coats, 158 Ore. 122, 74 P. (2d) 1102; State v. Wiley, 232 Iowa 433, 3 N. W. (2d) 620; In re Sutton, 148 Pa. Super. 101, 24 A. (2d) 756, Steely v. Commonwealth, 291 Ky. 554, 164 S. W. (2d) 977; People v. One Pinball Machine, 316 Ill. App. 161, 44 N. E. (2d) 950; Pepple v. Headrick, 64 Idaho 132, 128 P. (2d) 757; Giomi v. Chase, 47 N. M. 22, 132 P. (2d) 715. All of these cases, except Middlemas v. Strutz and Gayer v. Whelan, involved the question as to whether pinball machines were gaming devices. Only in Middlemas v. Strutz and Gayer v. Whelan were courts confronted with statutory definition of lottery similar to ours. However, in Middlemas v. Strutz, the issue raised in the instant case was not presented to the court. In Gayer v. Whelan, the issue was squarely raised. The court, after quoting the statutory definition of lottery identical with ours except that che fa and pakapio are omitted from the enumeration of examples of lottery, held:

“This definition excludes the pin ball game from consideration as a lottery. But one person can play or operate it at a time. That person places his nickel in the slot and he alone operates the machine. He alone reaps the reward of a free game or games. There is no distribution of the reward, if any, as it must be enjoyed by the one player. There is neither opportunity for contribution to the fund for the right to play, nor any chance for distribution of the reward among several who might have paid a required fee for such a privilege. This clearly eliminates the pin ball machine from consideration as a lottery device * *

In Territory v. Beeson, 23 Haw. 445, this court held that a slot machine was a lottery device. The slot machine involved in that case paid off three sticks of gum for every nickel deposited and in addition thereto trade checks redeemable in merchandise at uncertain and irregular intervals. Except for the fact that a greater element of chance is involved in the operation of a slot machine than in the case of a pinball machine, it seems that there should be no difference between the two as to the applicability of the definition of lottery. A slot machine is played by one person only, as in the case of a pinball machine. However, in Territory v. Beeson, the precise question raised in the instant case was not presented to the court. That case was decided on the question as to whether the operation of the slot machine involved the element of chance. The only authority cited in support of the decision is People v. Jenkins, 138 N. Y. S. 449, which construed a New York statute relating to a gambling device, not a statute relating to lottery.

Territory v. Beeson was decided in 1916. Our legislature has not changed the definition of lottery after the date of that decision. Territory argues that this fact indicates the acquiescence of our legislature in the decision and that the decision has become a part of the statutory definition. Such argument is valid if the prior decision depended on the identical question raised in the instant case. But we do not think that we are precluded by the silence of the legislature from reconsidering a prior decision of this court construing a statute if a question not previously raised is presented to us and a consideration of such question leads to a different conclusion. In Helvering v. Hallock, 309 U. S. 106, at page 119, the Supreme Court of the United States stated: “It would require very persuasive circumstances enveloping Congressional silence to debar this Court from reexamining its own doctrines. To explain the cause of non-action by Congress when Congress itself sheds no light is to venture into speculative unrealities.” The same court also stated in Girouard v. United States, 328 U. S. 61, at page 69: “It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.”

Territory also argues that section 11340 should be construed in the light of the public policy expressed in section 55 of the Organic Act which prohibits the legislature from allowing any lottery. Section 55 of the Organic Act is a restriction on legislative authority, not a restriction on the judiciary. Our function is to interpret the statute as it exists, not to indulge in judicial legislation in the guise of statutory construction. The definition of lottery in section 11340 was first enacted as section 2 of Act 21 of the Laws of the Provisional Government 1893-1894. To this date it has remained in the same language as originally enacted. In the meantime many new schemes not in the contemplation of the original lawmakers doubtless have been devised. If the statute is not flexible enough to embrace such new schemes, it is not for the court to fill the void. In United States v. Weitzel, 246 U. S. 533, at page 543, the Supreme Court of the United States stated: “Statutes creating and defining crimes are not to be extended by intendment because the court thinks the legislature should have made them more comprehensive.” In that case the defendant, a national bank receiver, was indicted under a statute punishing embezzlement by “every president, director, cashier, teller, clerk, or agent” of a national bank. The prosecution urged upon the Supreme Court that the punishment of defalcation by a receiver was clearly within the reason of the statute and that unless the term “agent” should be construed as including receivers, there was no federal statute under which an embezzling receiver of a national bank could be prosecuted. The Supreme Court deemed such argument as “not persuasive” and affirmed the judgment of the district court which sustained a demurrer to the indictment.

To the same effect is the decision of this court in Territory v. Ah Goon, 22 Haw. 31. In that case the defendant was convicted in a district court of the offense of using opium and having the same in his possession. The article which the defendant actually used and possessed was yen shee, a residuum left after opium is once smoked. In reversing the judgment of the district magistrate, this court stated at page 32:

“The crucial question presented by the record is, whether the statute prohibits the use, smoking or possession of yen shee? The theory upon which the prosecution proceeds is, that yen shee and opium are one and the same thing and equally within the legislative intent; as well as within the mischief sought to be prohibited by the statute. The application of this theory, however, would render it necessary to extend the scope of the statute by implication beyond its express terms. This, in our opinion, would be judicial legislation,— the creation of a criminal offense by construction * * *.

“That the use of yen shee may be within the mischief sought to be remedied by the legislature in the passage of the statute in question is immaterial; the statute, in express terms, is aimed at the use of opium only; and not at the use of yen shee, regarding which it is silent. ‘A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter, though within the reason and policy of the law * * *.’ ” (Citing 2 Lewis’ Suth. Stat. Const., § 521.)

John T. Ushijima (Pence & Ushijima on the brief) for defendant in error. Cyril Kanemitsu, Deputy County Attorney, Hawaii County (Yoshito Tanaka, County Attorney and Prosecuting Officer for the County of Hawaii, with him on the briefs), for plaintiff in error.

More recently, this court stated in Territory v. Sur, supra, at page 336: “Statutes prohibiting lotteries should be construed with a view to remedying the mischief intended to be prevented and to suppress all evasions for the continuance of the mischief. * * * Being penal, however, their terms must receive strict construction and their scope limited within their intent and meaning as so construed.”

Some concern is expressed that our construction of section 11340 will lay the Territory wide open to the operation of slot machines, popularly known as one-armed bandits. Even if such be the result, the remedy lies with the legislature. In construing a statute, the court must abide by the plain meaning of plain words, whatever the consequences. (United States v. Brown, 206 U. S. 240.) However,, there are significant differences between slot machines and pinball machines. (United States v. Korpan, 237 F. (2d) 676; United States v. One Bally Dude Ranch, etc., 144 F. Supp. 930.) Also, the defendant in this case was charged with violation of section 11341 and our opinion is limited to the question as to whether the operation of a pinball machine constitutes operation of “lottery” as defined in section 11340. This opinion does not extend to the question as to whether the operation of such device, in the manner alleged in the complaint, violates any other criminal statute. As to such question, we express no opinion because it has not been presented to this court.

The order of the district magistrate sustaining defendant’s demurrer and dismissing the complaint is affirmed.