Allen v. State

Scanlan, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Calvert County which was entered by Judge Perry G. Bowen, Jr., following a non-jury trial in which the appellant, Thomas Bennett Allen, was found guilty of the illegal possession of two slot machines, i.e., (1) an inoperable, console-type slot machine from w'hich most of the inside mechanism had been removed, and (2) a reel apparatus from another slot machine. Judge Bowen sentenced the appellant to pay a fine of eight hundred dollars ($800.00). THE STATUTE INVOLVED AND THE QUESTION PRESENTED Article 27, Section 264B II (B) of the Ann. Code of Md. (1971) makes it unlawful: “. . . for any person, firm or corporation, ⁴⁶¹ whether as owner, lessor, lessee, licensor, licensee, or otherwise, to possess, keep, maintain or operate, or have in or upon any place of business, building or premises for any purpose any slot machines whatsoever; provided, however, that the county commissioners or county executive of any county in which such machines are situated may, in their discretion, cause such machines to be registered in a manner appropriate to their office and to be sealed against use, stored, kept and possessed under the supervision and control of said county commissioners or county executive pending lawful disposal.” Article 27, Section 264B defines a “slot machine” as follows: “Any machine, apparatus or device is a slot machine within the provisions of this section if it is one that is adapted for use in such a way that, as a result of the insertion or deposit therein, or placing with another person of any piece of money, coin, token or other object, such machine, apparatus or device is caused to operate or may he operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, coin, token or other object representative of and convertible into money, irrespective of whether the said machine, apparatus or device may, apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise or money or other tangible thing of value.” (Emphasis added.) The question presented on this appeal is whether the trial court erred in finding that the appellant had violated Article 27, Section 264B by his possession of (a) an inoperable slot machine, and (b) the reel mechanism from another slot machine.

For the reasons stated below, we hold that the two ⁴⁶² apparatuses of whose possession appellant was found guilty did not fall within the definition of “slot machine” as set out in Article 27, Section 264B in that they were not, at the time they were found in his possession, “adapted” for use as slot machines. THE FACTS Corporal R. H. Hayman, of the Maryland State Police, testified that during his investigation of the theft of four slot machines from a bar in North Beach, Maryland, he recovered two slot machines, both in operable condition, from John Thornton Billhimer. Corporal Hayman also testified that he then obtained a copy of a trade journal in which two slot machines were advertised for sale. The telephone number of the seller was given in the advertisement.

As a result, Corporal Hayman was able to ascertain that the telephone number listed belonged to the appellant. He then reviewed the records in the office of the County Commissioners for Calvert County and learned that the appellant had not registered any slot machines with the County Commissioners pursuant to the provisions of Article 27, Section 264B II (B). The police then obtained a search warrant for the premises owned by the appellant. They executed the warrant and recovered the following items from the basement of appellant’s residence: (1) an empty slot machine case; (2) a reel mechanism for a slot machine; and (3) a one-arm, console-type slot machine from which various parts necessary for it to operate had been removed.

The searching officers testified that they made no effort to operate the console-type slot machine and indicated that the empty slot machine case and the reel mechanism clearly were inoperable as slot machines at the time they were seized. One of the officers who participated in the search, Deputy Sheriff John Peyton, stated that the seized apparatuses were found in the workshop area of appellant’s basement. He saw pinball machines and other machines in the workshop at the time of the search. ⁴⁶³ The appellant identified himself as a coin machine operator, dealing in all types of coin operated machines, including coffee machines, gum machines, cigarette machines, jukebox machines, pinball machines, coin operated car wash machines, penny scales and almost “any type of coin operated machines.” Appellant’s business is not confined to the State of Maryland, but he operates in the District of Columbia and Virginia as well. He testified that he owned three hundred coin machines in various types “spread out all over Maryland, the District of Columbia and Virginia.” Concerning the devices or apparatuses seized by police officers on the basis of which the charges were brought against him, appellant testified that he had “cannibalized” those machines to use some of their parts in other coin operated machines.

For example, he said the coils in a console-type slot machine “can be used on any pinball machine as long as it is the same voltage.” Appellant further testified that the springs in a pinball machine and in some coin slot machines are basically the same and this also was true in the case of the coin mechanism. He pointed out that the coin rejector would fit any machine. Appellant conceded that the slot machine reel seized in the search would not be interchangeable with another kind of coin operated machine. He said the reel was a part left over from a machine which he had “cannibalized” for other parts and that it was the only part of that machine which remained.

John Thornton Billhimer testified that the two machines which he turned over to Corporal Hayman in October 1971 were not in working condition when he received them in August of that year. Billhimer testified that he did not receive these two machines from the appellant, but that there came a time when, during the course of a conversation between the two men, the appellant told Billhimer that the two machines were his. Billhimer testified that it took him considerable time to put the two machines in operating condition because he had to make some of the parts, including the main spring. He also had to repair the clock and the slides of the two machines without ⁴⁶⁴ which parts they could not operate.

The appellant was not charged with possession of the machines which Billhimer had turned over to the authorities. Judge Bowen found that the State had not proved beyond a reasonable doubt that the appellant had violated the statute by his possession of the empty slot machine cabinet. As stated, however, he did find him guilty of possessing two slot machines, ie., the inoperable, console-type slot machine and the reel mechanism from the slot machine which the appellant had dismantled. The rationale of the trial court’s ruling is found in this statement in his memorandum opinion: “The law doesn’t say anything about whether that machine has to be operatable [sic] or whether it has to be in working condition or capable of paying out or taking in.

Any piece of it which is clearly adaptable for that type of operation and for no other . . . falls within the prescription of . . .” the statute. (Emphasis added.) THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A FINDING OF GUILTY The appellant’s unchallenged testimony showed that he was a coin machine operator who used parts taken from dismantled slot machines in other types of coin operated machines, such as pinball machines, jukeboxes, etc. The evidence established that the slot machine reel and the partially dismantled slot machine which the police officers seized were inoperable. No evidence was introduced by the State to indicate that the missing parts required to make both of these apparatuses operable were immediately available to the appellant or that either device could be readily assembled as an operable slot machine. On these facts the State, nevertheless, argues that the two apparatuses possessed by the appellant and seized in the search of his workshop “were clearly adaptable to the operation” of a slot machine.

As previously stated, the trial court also was of the view that the two devices in question ⁴⁶⁵ were “clearly adaptable” for use as slot machines. (Emphasis added.) Webster’s International Dictionary (2d ed.) defines “adaptable” as that which “can be adapted or can easily adapt to.” If the Maryland General Assembly had proscribed coin machines which were “adaptable” or “easily adapted” for use as slot machines, we might have to concede the merit of the State’s argument and the correctness of the trial court’s determination in this case. The Legislature, however, has not spoken in the terms used by the State and the trial judge in their interpretation of the statute, i.e., “adaptable for use.” The statute speaks more narrowly. Article 27, Section 264B outlaws a machine, apparatus or device if it is one that “is adapted for use” as a slot machine.

Webster, supra, defines the transitive verb “adapt” in these terms: “To make suitable; to fit; to adjust . . . .” In Article 27, Section 264B, the General Assembly used the verb “adapt” in its present tense and passive voice, i.e., “is adapted.” The statute thus covers only devices which are fit, or adjusted, for use as slot machines. The Legislature did not go so far as to outlaw expressly machines or devices which are adaptable for use as slot machines. It is our function to ascertain the meaning of the words which the Legislature used, not what it might have said. As the late Mr. Justice Frankfurter put it in a different context: “When the . . . [Legislature] has the will, it has no difficulty in expressing it.” Bell v. United States, 349 U. S. 81, 83 (1955).

If the General Assembly wanted the dragnet of the statutory definition of slot machine to sweep wider than we discern it to reach, it easily could have chosen words which would have achieved that purpose. Moreover, the legislative history of the enactment of Article 27, Section 264B in the 1963 Session of the General Assembly permits the inference that the more restrictive language which the General Assembly used was not an accidental decision. The legislation which finally abolished slot machines in this State arose out of the findings and recommendations of the Emory Commission which Governor Tawes appointed in 1962. As the Court of Appeals ⁴⁶⁶ noted in Clerk v. Chesapeake Beach Park, 251 Md. 657 , 248 A. 2d 479 (1968), the report of the Emory Commission, in recommending the gradual abolition of slot machines in Anne Arundel, Calvert, Charles and St. Mary’s Counties, referred to laws abolishing slot machines in Florida and New York.

Specifically, the Commission reported that: “Florida and New York have laws that prohibit the possession of any machine or device which, by reason of any element of chance or of other outcome of such operation unpredictable by the operator, the user may receive or become entitled to receive anything of value or otherwise or may secure additional chances or rights to use the machine. It will be noted that this is a very broad definition which