In Banc. The defendant Coats is charged with the crime of promoting and setting up a lottery in Polk county by means of a certain device commonly known as a pinball game.
In the information filed by the district attorney it is alleged as follows:
"That said C.C. Coats, on the 23d day of August, 1937, in said county of Polk, State of Oregon, then and there being, did then and there wrongfully, unlawfully and feloniously promote and set up a certain lottery for money by then and there promoting, setting up and operating a certain device commonly known as a pin-ball game for money, which pin-ball game involved an element of skill, but in the playing of which the element of chance predominated, and which pin-ball game and the manner and method of its play is particularly described as follows: The cabinet of said pin-ball game had and has a flat horizontal top in the shape of a table approximately 18 1/2 inches wide and 42 inches long and is mounted on four legs, with one end of the table a little lower than the other. The table legs are capable of being adjusted so as to alter, to some extent, the elevation or incline of the playing surface of the table. A game is played upon said table with a marble or metal ball. The playing surface on the top of the table, which top is protected by a glass cover, has a number of holes numbered from 1 to 16 inclusive, and into which the marble or metal ball used in playing the game may lodge. Springs and resilient pins are driven *Page 125 into the surface of the playing board at various places and particularly upon the upper side of each of said holes. Beneath the playing surface of said board was and is a receptacle for holding a marble or metal ball and a device for the purpose of raising said marble or metal ball from said receptacle and placing the same in front of a plunger located within and upon said game on the lower righthand corner thereof and which said plunger was and is adapted, designed and devised so that when pulled back and released it will strike said marble or metal ball and force the same along a channel on the righthand side of said board toward the upper or higher end of said board and onto the playing surface of said game. At the upper end of said game and extending upward at right angles to the playing surface was and is a cabinet showing numbers from 1 to 16 inclusive and which numbers correspond to the numbered holes upon the playing surface of said board; and in said cabinet at the upper end of said board there is an electrically controlled revolving drum containing a series of numbers from 2 to 30, and which numbers determine the number of nickles or 5 cent coins of the United States of America given as an award upon the successful playing of said game, these awards for successful playing of such game changing with each play thereof. In addition to the holes on the playing surface of said board numbered from 1 to 16 inclusive, there are three other holes on said board described as follows: One hole in approximately the center of the playing surface of said board is marked `Left at Post'; another hole directly below the hole marked `Left at Post' is marked `Daily Double', and the third hole at the bottom of the playing surface of said board is marked `Parlay Purse', and at the extreme lower end of said playing surface of said board is a receptacle to receive said marble or metal ball in the event the same fails to drop in one of the holes on the playing surface of said board. Said game is named by the manufacturer thereof as `Pamco Parlay'. In playing said game the player thereof is required to deposit a nickel in money in a slot or chute located on the lower left-hand corner of said game, and said player places said *Page 126 game in play by pushing said coin chute forward containing said nickel as aforesaid, and which operation drops said marble or metal ball into said receptacle under the playing surface of said board and enables the player, by the use of a lever on the lower righthand corner of said game, to raise said marble or metal ball to said channel on the right side of said game, and in front of said plunger as aforesaid. The player then propels the marble or metal ball onto said playing board by the use of said plunger as aforesaid, attempting in the use of such plunger and the degree of force applied thereby to cause the marble or metal ball when shot forward onto the playing surface of said board to drop in one of said holes numbered or named as aforesaid, and particularly to avoid said marble or metal ball dropping in said hole marked `Left at Post' as described. If said marble or metal ball drops in one of said holes numbered as aforesaid, then the player thereof received as his award therefor the number of nickels indicated on said electrically controlled drum opposite the number on said cabinet corresponding to the numbered hole on the playing surface of said board into which said marble or metal ball has dropped. In the event the marble or metal ball drops in said hole marked `Daily Double' the player receives an award of ten nickles or 50c in money; and in the event said marble or metal bal drops in the hole marked `Parlay Purse' the player receives an award of ten nickels or 50c in money. The holes marked `Daily Double' and `Parlay Purse' are not indicated upon said cabinet at the upper end of said board, and the odds do not change as to these holes, the award for the marble or metal ball dropping in each of said holes being the same in all cases. In the event the marble or metal ball drops in the hole marked `Left at Post' the player receives no award and loses the game, and in the event the marble or metal ball fails to drop in any other hole on the playing surface of said game the player receives no award and loses the game. In the playing of said game the player is permitted to play but one shot with one ball for the five cents paid by him as consideration for the playing of said game, and only one player can play *Page 127 said game at a time. In the event the player causes said marble or metal ball to drop in any of said numbered holes, or in said two specifically named holes as aforesaid, the award which the player receives is paid in nickel coins of the United States of America, and said coins are caused to be automatically delivered to the player in a coin-delivery box at the lower end and bottom of said game. In the playing of said game the speed, course and direction of said marble or metal ball, and the hole on the playing surface of the board into which said marble or metal ball may drop, if any, is controlled to a certain degree by the skill of the player, but is determined principally by chance, and in the playing of said game the element of chance predominates over the element of skill, and the operation of said game constituted and does constitute the promoting and setting up of a lottery for money, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."
From an order sustaining a general demurrer to the information, the State appeals.
The vital question is whether the setting up and operation of the pinball machine particularly described in the information constitutes conducting a lottery within the meaning of the term as defined by this court.
Section 4 of Article XV of the Constitution of Oregon provides as follows:
"Lotteries and the sale of lottery tickets, for any purpose whatever, are prohibited, and the legislative assembly shall prevent the same by penal law."
Section 14-801, Oregon Code 1930, in reference to setting up or promoting lotteries, provides:
"If any person shall promote or set up any lottery for money or other valuable thing, or shall dispose of any property of value, real or personal, by way or means of lottery, or shall aid or be in any way concerned in setting up, managing, or drawing such lottery, or shall, in any house, shop, boat, shed, or building owned *Page 128 or occupied by him or under his control, knowingly permit, or suffer the setting up, management, or drawing of any such lottery, or the sale of any lottery tickets, share of a ticket, or any writing, token, or other device purporting or intended to entitle the holder or bearer thereof, or any other person, to any prize or interest or share thereof, to be drawn in any lottery, such person, upon conviction thereof shall be punished by imprisonment in the penitentiary not less than six months nor more than one year, or by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $100 nor more than $1,000."
The State contends that the operation of this mechanical device involves all the elements of a lottery, and that any statute or ordinance purporting to authorize the licensing of the same is in violation of the Constitution and, hence, of no force or effect.
The defendant contends that, since the pinball game, under the allegations of the information, involves an element of skill, it cannot, under the law, be deemed a lottery. The defendant further asserts that, before any game can be said to constitute a lottery, "pure chance" as distinguished from "dominating chance" must be involved. In the instant case, it is alleged that the course of the marble ball "is controlled to a certain degree by the skill of the player." Hence, defendant contends, the playing of the game does not involve "pure chance" and therefore cannot be a lottery.
There is quite a divergence of opinion among the courts of the various jurisdictions as to what constitutes a lottery. It is not easy to reconcile all that this court has said on the subject. Since this court has, at some length, repeatedly reviewed the various definitions of a lottery, we see no occasion to do so again. Suffice it to say, we adhere to the definition given in the last expression of this court, speaking through Mr. *Page 129 Justice RAND, in State v. Schwemler, 154 Or. 533, 538 (60 P.2d 938):
"* * * any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine."
This definition was taken from Bishop on Stat. Crimes (2 Ed.) § 952, and is quoted with approval in Quatsoe v. Eggleston,42 Or. 315 (71 P. 66), and in National Thrift Association v.Crews, 116 Or. 352 (241 P. 72, 41 A.L.R. 1481). The term "lottery" has no technical meaning but, as said by Mr. Justice ROBERT S. BEAN in Quatsoe v. Eggleston, supra, courts adopt the generally accepted definition in popular use. Like fraud, it is difficult to define a lottery with any degree of certainty.
Some courts take a broad view of the term while others take the somewhat restricted view that a lottery is confined to a device or scheme which has broad social consequences and amounts to what some say is a "wide-spread pestilence." No doubt this feature gave rise to prohibitory legislation against the operation of lotteries but, in our opinion, a scheme or device may constitute a lottery even though it does not amount to a "widespread pestilence." It is well known that Chinese lotteries are sometimes operated behind barred doors and only those persons are admitted who pass the eagle-eyed scrutiny of the lookout man. It is the character of the gambling plan or scheme which determines whether it constitutes a lottery, rather than its widespread evil consequences or the number of persons who participate therein. Be that as it may, the courts may be assumed to know what everybody knows and we have no hesitancy in saying that various types of slot machines have become a "widespread pestilence." Some of these mechanical bandits may be *Page 130 found throughout the state in many stores, restaurants, pool rooms and hotels, appealing to the gambling instinct of a gullible public.
To say that the operation of pinball machines or slot machines involves any substantial degree of judgment or skill severely strains the credulity of any reasonable-minded person. Such machines are constructed to win and they do win. In a game involving skill or judgment, the player has a fair opportunity to win. Such opportunity is not afforded the player who "bucks" a slot machine or a pinball machine. No judgment or skill which the player may exercise has any appreciable effect upon the result. It is, to all intents and purposes, a matter of chance.
The information twice draws the legal conclusion that the operation of the pinball machine involves an element of skill, but that, in playing it, the element of chance predominates. The only attempt to allege any fact in support of this conclusion is the following:
"In the playing of said game, the speed, course, and direction of said marble or metal ball, and the hole on the playing surface of the board into which said marble or metal ball may drop, if any, is controlled to a certain degree by the skill of the player * * *."
When this language is scrutinized in connection with the detailed description of the device and its operation, it is almost as though one should describe with particularity the manner in which a game of roulette is played and then conclude by stating that the result of the game was controlled by the skill of the player.
The device described in the information is a table with a playing surface approximately three and one-half feet long and one and one-half feet wide. Cut into this surface are nineteen holes, of which eighteen are *Page 131 "pay" holes and the other, designated as "Left at Post," is not.
Springs and resilient pins are driven into the surface of the playing board at various places, and particularly upon the upper side of each of the holes. The table is tilted and, at the lower end, from which the ball used is started, is a receptacle into which the ball may fall when it has run its course. The object, so far as the player is concerned, is to get the ball into one of the eighteen pay holes. If he is successful, he receives a reward greater than the nickel which he pays for the privilege of playing; if he is unsuccessful, he receives nothing.
The player sets the ball in motion by pulling a plunger and then releasing it, and it may be inferred from the allegations of the information that the further back the plunger is pulled the greater will be the force applied to the ball and, consequently, the greater its speed. The ball then travels along a channel on the right-hand side of the board to the further or upper end, where it enters the playing surface. Here it encounters hazards. It may miss all the holes and all the springs and resilient pins and go directly into the receptacle in the lower end; it may drop into a hole, pay or otherwise, avoiding the pins and the springs; or its journey may be interrupted by a collision with a spring or pin, so that it is buffeted about from spring to pin and from pin to spring, to find a resting place, finally, in a pay hole, the "Left at Post" hole, or the receptacle at the lower end.
It is perfectly obvious from the information that the only act which the player can, by possibility, perform to influence the result of this operation is to pull back the plunger a greater or lesser distance and, thereby, in its initial stages, regulate the speed of the *Page 132 ball. He can send the ball to the playing surface at greater or lesser speed, but he cannot guide or influence its course after it gets there. He cannot aim at anything, as in a game of billiards, or baseball or golf, but is absolutely limited by the mechanics of the device to propelling the ball along the so-called channel to the upper end of the table.
If it be conceded that an exceptional person might, after long practice, develop such proficiency in the business as to be able on occasion to influence the result of the play in any substantial or perceptible degree, yet it is apparent that, so far as the patronizing general public is concerned, it involves nothing more than mere chance. Thus, while we do not consider that we are at liberty to ignore the allegation respecting the control exercised by the player, we are bound to give to it only the meaning and importance to which it is properly and legitimately entitled in the setting where we find it. So viewed, we think that if that allegation does not in fact contradict the plain implication arising from the description of the mechanics of the device and the manner of its operation, it nevertheless fades into legal and practical insignificance in that atmosphere.
Three things are necessary to constitute a lottery, viz, prize, chance and consideration: State v. Schwemler, supra;Multnomah County Fair Ass'n v. Langley, 140 Or. 172 (13 P.2d 354); Johnson v. McDonald, 132 Or. 622 (287 P. 220); NationalThrift Ass'n v. Crews, supra; National Sales Co. v. Manciet,83 Or. 34 (162 P. 1065, L.R.A. 1917D, 485); Quatsoe v.Eggleston, supra; Fleming v. Bills, 3 Or. 286, decided in 1871. If any substantial degree of skill or judgment is involved, it is not a lottery. Of course, all forms of gambling involve prize, chance and consideration, but not all forms of gambling are lotteries. A lottery is a scheme *Page 133 or plan, as distinguished from a game where some substantial element of skill or judgment is involved. Poker, when played for money, is a gambling game but, since it involves a substantial amount of skill and judgment, it cannot reasonably be contended that it is a lottery. In the instant case the mechanical device is the means of carrying into execution the illegal scheme or plan. Tested by the legal principles above stated, we are convinced that the mechanical device described in the information constitutes a lottery.
In our opinion, the pinball machine described in the information is a type or form of slot machine and must be judged by the law applicable to it. Both are mechanical schemes or devices that come within the definition of lotteries as set forth in State v. Schwemler, supra.
The instant case is closely analogous to Fleming v. Bills, supra. In that case defendant was accused of having conducted a scheme or game operated by means of dice and a box containing prizes. The box was divided into 48 different compartments, some of which contained prizes. If the player threw dice bearing a number corresponding to the number of the compartment containing a prize, he was a winner; otherwise, the player received nothing. The court held the scheme to be a lottery, as the throwing of dice is "wholly a matter of chance," and that such scheme involved no skill.
According to the weight of authority the operation of slot machines and similar gambling devices, whereby small amounts are hazarded on the chance of winning larger sums, constitutes lotteries: State v. Barbee, 187 La. 529 (175 So. 50); State v.Lowe, 178 N.C. 770 (101 S.E. 385); Commonwealth v. Plissner (Mass.), 4 N.E.2d 241; Johnson v. State, 137 Ala. 101 *Page 134
(34 So. 1018); Loiseau v. State, 114 Ala. 34 (22 So. 138, 62 Am. St. Rep. 84); 38 C.J. 299. See cases in note 101 A.L.R. 1126.
Having held that the operation of the pinball machine in question constitutes a lottery and is in violation of the Constitution, it follows that chapter 369, Oregon Laws 1935, providing:
"That municipal corporations and counties be and they hereby are empowered to license, limit, regulate, impose a privilege tax or charge upon or prohibit pin ball games, dart games, and other games of like character involving an element of skill."
insofar as it purports to authorize the licensing of the same, is of no force and effect.
No doubt the able and conscientious trial judge in sustaining the demurrer to the information was influenced largely by the general allegation that the player exercised some skill in the operation of the pinball machine, but, as we have heretofore endeavored to show, it is our opinion that the information, when considered in its entirety, does not warrant such conclusion.
The decree of the lower court sustaining a demurrer to the information is reversed and the cause remanded for further proceedings.
BEAN, C.J., and RAND and LUSK, JJ., concur.