Hoke v. Lawson

²⁴⁹ Bond, C. J., delivered the opinion of the Court. The General Assembly, at its special session of 1937, adopted as one of the measures of a general enactment for raising revenue for aid to the needy, chapter 11, section 6, a provision for licensing gaming machines, to follow section 23 of article 56 of the Code, and to read: “23A. No pin ball machine or game played with balls and plungers upon the insertion of a coin or token or any other machine or device so constructed or devised as to make the result of the operation depend in whole or in part upon the skill of the player, shall be kept, maintained or operated for the purpose of public entertainment or gain within the State of Maryland, unless a State-wide license has been previously obtained.” Keeping, maintaining or operating such machines without the licenses was made a punishable offense, but, with the licenses, made lawful. It was specifically provided that nothing in the section should “be deemed to make lawful the maintenance, operation or possession of any machine or device, the successful operation of which depends solely upon chance.” The appellants in the three cases argued together have been exploiting in Baltimore City slot machines, affording chances at prizes upon insertion of coins, with attachments designed to bring them within the statutory class of those which may be licensed, and to avoid the prohibitions of the gambling laws with particular reference to slot machines.

See Gaither v. Cate, 156 Md. 254 , 144 A. 239 . Enforcement, or threats of enforcement, of the gambling laws have followed nevertheless, and the present cases have arisen upon bills in equity to restrain the police commissioner of the city from interfering with the machines and confiscating them. The chancellor issued interlocutory injunctions, but upon evidence subsequently taken concluded that the machines did not conform to the law, dissolved the injunctions, and dismissed the bills. An appeal has followed in each case.

The three machines involved are all essentially slot machines, by which players depositing coins in slots and ²⁵⁰ causing marked discs to revolve, take chances on the combinations of marks to be displayed by the discs when they come to a stop. The prizes, in coins or tokens varying according to the combinations, are delivered at outlets. To these essential elements have been added attachments to entitle the machines to be called pin ball machines or games played with ball and plunger, or machines or devices the result of the play on which is dependent upon skill, within the terms of the licensing-statute. On Hoke’s ■ machine, called “Trap the Snake,” after depositing the coin the player must pull a trigger which, “operating like a see-saw,” throws a ball on the inside end of it up toward the mouth of a snake, which is in fact a metal tube.

Striking a pin or tongue in the tube releases the coin and makes the machine ready for the ordinary play of such devices. The ball may miss, and in some machines of the same make in use it would then fall 'back to the trigger for other tries until the ball is put in the mouth, but the machine exhibited in the court below had a pin inserted to hold the ball from returning. With the ball in the mouth the player could then, by pressing a lever on the side, start three discs revolving. The trigger needs to be pressed, and the ball lodged in the snake’s mouth again, to release winnings if any should be indicated on the discs.when stopped.

This feature of the trigger and pin is thought to make the machine a pin ball machine, one played with-ball and plunger, and one requiring skill in the play. A second feature, designed to furnish the requirement of skill, is a contrivance which may be pressed on top to brake and stop the revolutions of the discs before they would die out of themselves. With the deposit in Nelson’s machine, either before it or after it, a player, in order to give the coin entrance into the operating parts, is required to propel a ball, by a plunger, against a target holding a pin in its center. Any number of tries may be made without additional coins until the target is hit.

The testimony was that the plunger and target could be removed from the machine ²⁵¹ without affecting the play on the discs. The coin having been let in, the lever is pulled and the discs set in motion to show a winning or losing combination of marks or emblems on stopping. Here again, pressure on a contrivance on top, in the shape of buttons, will stop the discs before they would stop of themselves, but while this interference must have an influence on the combinations, it appears by testimony that the player cannot by any skill he may acquire control the choice of combinations; that remains a matter of chance alone. The machine exhibited in the court below was in fact adjusted to pay out to players a maximum of only sixty nine per cent of the deposited coins in all, and by another adjustment could be made to pay out a maximum of seventy-six per cent.

When a favorable combination appears on the stopped discs of this machine, the player must hit the target again with the ball to release the indicated winnings, which would be tokens differing in numbers with the different combinations. It is contended that the pin in the target, and the ball and plunger by which the ball is thrown toward it, bring the machine within all the descriptions contained in the licensing statute: pin ball, ball and plunger, and a machine the result of the play on which is dependent upon skill. It is conceded that MacDaniel’s machine, called “Silver Chief,” would be one for a game of chance solely, except for a box attached at the side to require a play of skill. A player who gets a winning combination on the stopped discs is directed, in order to release his winnings, to shoot a ball into one of three holes inside the box, by means of a plunger.

The machine exhibited was adjusted to pay out players a maximum of 77.1 per cent of the money deposited. The application for official approval and license described the machine as a pin ball machine, and there are pins in or about the holes in the attached box, not clearly placed in the testimony; but the witnesses do not treat them as important. Until the second day of the hearing of the testimony in the court below, after an interval of three days since the first day, the ball in the ²⁵² box could be played and replayed with the plunger an indefinite number of times, without deposit of another coin, until it fell into the hole to release winnings indicated on the discs, and it was testified that the same condition existed in other machines of the make in use about the city. A detective sergeant assigned to examine another such machine at a distance from the center of the city found it was not necessary for him to touch the plunger and ball at all to receive any winnings during his experiments.

In the three days before the second day of the hearing, mechanics altered the condition on the machine exhibited, arranging to prevent the return of the ball except by another start of play with another coin, and the alteration is relied on as making the machine, previously of doubtful lawfulness under the act, now lawful. This might raise a question whether the device, so altered after suit filed, could be regarded as the subject of complaint in the suit, and could be the subject of an injunction under the bill. See Miller, Equity Procedure, sec. 187. But the point may be passed.

Even when repetition of shots by the ball and plunger is prevented, interference from anything in the box attachment can be avoided, and winnings released, by manipulations of pins about the holes, or by tilting the whole machine. These holes are three, in line, and winnings are released by a ball in the first hole; if it is shot further back the winnings, as the contrivance is now arranged, are not released, and the player gets nothing for the deposited coin. When tried in the court below the opportunity for the exercise of skill proved to be slight. The complainant deliberately tried to shoot into a losing hole and accomplished it only once in ten or twelve tries.

The ball found its way into the winning hole despite his efforts. One of his witnesses, a representative of the manufacturer, succeeded in avoiding the winning hole only once in five tries. Success in releasing indicated winnings seems well assured. The appellants, dividing the statute, contend that three separate kinds of machines are legalized by it: (1) A pin ball machine, (2) machines played with balls and ²⁵³ plungers, and (3) any other machines or devices so constructed or devised as to make the result of the operation depend in whole or in part upon the skill of the player, skill being required in the operation of the third group only.

The phraseology of the third division, of any other machine or device, militates against that construction, for the word “other” seems to imply some element common to them all, and that, the element of skill mentioned. And the exclusion of machines the operation of which depends upon chance seems to amount to an express requirement that skill shall enter into the operation of those made lawful. The skill involved in pin ball machines as defined in the records is not apparent to all, but the construction contended for could not be adopted. Skill appears to be intended in all machines.

Both from descriptions by witnesses and by illustrations exhibited, it appears that pin ball machines, as known at the time of the enactment, were essentially like the familiar toy in which an inclined board, curved at the