The State, through the District Attorney of Dallas County, instituted these proceedings under Art. 637 of the Penal Code, Vernon’s Ann.P.C. art. 637, for the destruction of seven devices commonly known as marble tables, slot machines, or marble slot *328machines, allegedly kept or exhibited for the purpose of gambling, in violation of Art. 619, P.C. J. J. Hightower, alleged to own an interest in all the devices, and Charles Skibos, John Cooper, George Hodges, E. Wright, M. Petroíf, 'C. H. Herbig and Rex Allen, from whose possession, the devices were taken, were named defendants. The pleadings filed by the District Attorney alleged that the tables or devices were seized by the Chief of Police of the City of Dallas, gave a list of same, the names of the persons from whose possession the devices or tables were taken, designated the places where the seizures were made, praying for destruction of same, as provided by statute. Defendants were cited and answered by plea in abatement, in effect, a plea to the jurisdiction, general denial, alleged that the defendant Hightower owned the devices or tables, but that they were leased to and in the possession of the other defendants at the time of the seizure; praying that the State be denied the relief sought and that the property be restored to the owner, and for general relief.
From a judgment ordering destruction of all seven tables, this appeal was taken. The structure of the marble boards so condemned was generally the same, each consisting of a wooden box frame, with four adjustable wooden legs. On the surface was a playing field containing various pins, knobs, springs and runways. At the head of the device, and above the playing field, was an upright board, indicating the score following every play, all being electrically controlled; the type of score varying with the design of the machine. Each was operated by placing a five-cent coin in a slot, releasing metal balls which were separately propelled into the playing field by means of a spring plunger; the ball, by touching various pins, regulated the individual and final score. Oil the glass surface thereof were the words “For Amusement Only”. The effort on part of the player, it would seem, was to obtain the highest possible score. The machines had been installed upon the premises of the various defendants, other than Hightower, and were only incidental to the particular business of such shop owners or proprietors.
Concerning two of the tables (Nos. 2020 and 2031), it was conceded that, should a player succeed in dropping one of the metal balls into a certain hole, he became entitled to and would automatically win a free game. Art. 619, Vernon’s Ann.P.C., under which this action is prosecuted, deals with the offense of “Keeping or exhibiting gaming table or bank, etc.”; and, in part, provides: “Any such table, bank, wheel, machine or device shall be considered as used for gaming, if money or anything of value is bet thereon.” It has been generally held that amusement is “a thing of value” and that free games won on devices and under circumstances as above portrayed are under the condemnation of the statute, rendering machines Nos. 2020 and 2031 gaming devices per se; State v. Langford, Tex.Civ.App., 144 S.W.2d 448; Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N.E.2d 159; Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W.2d 161; Annotations to Painter v. State, 81 A.L.R. 177; 24 Amer.Jur. Sec. 35, p. 423.
As to the other machines (five in number), it is undisputed that none had any automatic “pay-off” adjustment; and that the only result from playing thereof was the amusement of the player in securing a high score. No testimony whatever discloses an understanding on the part of any store proprietor to pay “over the counter” for high or particular scores; or that any player was seen or permitted to bet on the machines’ operation. Notwithstanding this state of the record, however, the trial court found, among other things, that “each of these machines is so equipped that by slight mechanical changes the automatic pay-off, whereby the machines automatically pay off certain amounts of money when a designated score is made, can be attached to the machines and so operated automatically; * * * That machines exactly like the machines in question or machines operated on the same principle and similar to these, have been used in Dallas for the last five years for betting and gaming, whereby the owner or manager of the place of business where the machine is located pays off ‘over the counter’ on previously agreed scores, the payment over the counter being in proportion to the score made; and further, that said machines have been used extensively during the last five years for betting and gaming whereby two players play for high score and bet on the outcome.”; and “the only reasonable and profitable purpose for which these machines may be used is for gaming, in violation of Article 619 of the Penal Code * *
There was no evidence that any tools or appliances were on the premises involved for making the “mechanical changes” above referred to; and the court refused appellants’ request for a finding of whether the *329tables were, at the time of their seizure, being exhibited for the purpose of gaming..
Thus, the trial court has held that the five tables in question were gaming devices per se, despite uncontradicted testimony that the only capacity in which they were being used at the time of their confiscation was for the players’ amusement. The statute does not expressly classify marble boards, or like devices, as inherently offensive; hence the question of illegality must hinge upon the nature of their actual use. “A slot machine, it has been said, is not per se a gambling device, since it may be used or played upon for innocent purposes; and the courts cannot, therefore, take judicial notice that every slot machine is a gambling device, since the use to which it is put must determine its character.” 24 Amer.Jur. § 35, supra. “A gaming table is not determined by its structure, but by the purpose for which it is exhibited”; Houghton v. Fox, Tex.Civ.App., 93 S.W.2d 781, 782; and in all Annotations under Art. 619, Vernon’s P.C. Vol. 1, p. 566, where this phase of the statute has been considered, it is uniformly stated that “Whether or not the table was designed for gaming purposes is immaterial — it is the game or character of play on it that determines its status.” It would follow, therefore, that marble machines of the “non-pay-off” variety, as to which no evidence is adduced of their being used for gaming purposes at the time of seizure, are not gambling devices within the inhibition of above statute; for, no matter what the structure of these particular boards may be, whether games of chance or of skill, they are not to be classed ipso facto as gambling devices, so long as not used for gambling purposes; i.e., where no money or thing of value is bet thereon. An entirely different situation would exist if, by mechanical adjustment, the machines were made to pay off; or if an understanding be had with the proprietor “over the counter” to the same effect; or in case of knowledge and acquiescence by the machine keeper to a wagering by players upon resulting scores. The machines would then become gambling devices per se, placing defendants factually within the purview of Houghton v. Fox, supra; but such evidence is wholly absent from this record. We also conclude that the test applied by the trial court “that the only reasonable and profitable purpose for which these machines may be used, is for gambling, in violation of article 619 of the Penal Code,” is. not controlling of the instant facts. The statute is not so worded and, as we view the decisions, it has not been so interpreted.
The property was taken from the possession of defendants herein, Hightower alone asserting ownership. The pleadings and stipulations of the parties are sufficient to entitle all defendants to appeal from the court’s judgment and for restitution. It is our opinion that the destruction order under review should be affirmed as to machines Nos. 2020 and 2031, but reversed and rendered as to the remaining five numbered machines; and that proper instructions issue restoring same to their owner or lessors, as defendants may elect.
Affirmed in part; reversed and rendered in part.
LOONEY, J., dissents.