[1] This is an appeal from orders of confiscation made in three causes of action filed in the District Court of Bryan County which were consolidated.
[2] The appellants owned 300 pin ball machines which were located in the State of Texas and most of them in operation there. The laws of the State of Texas did not prohibit the operation of such machines but the effective date of an act of the legislature of the State of Texas was about at hand and it was deemed necessary in order to prevent confiscation of these machines in the State of Texas to take them out of that state. The machines were brought in interstate shipment across the boundary line between Oklahoma and Texas and at different places stored at or near Durant in close proximity to the border line. All the machines were shipped by truck and bore address labels "To — Taylor Warehouse, Durant, Oklahoma."
[3] The machines all have an electrical contrivance by which they can be operated if set therefor only for amusement or they can be set for gambling purposes and under such a setting would be in violation of the laws of the State of Oklahoma. Most of the machines as stored at or near Durant were crated. Some of them were not. None of them appeared to be set for use in violation of the laws of this state.
[4] In the course of the trial the defendants below, appellants here, offered evidence tending to prove that they did not intend to use the machines in the State of Oklahoma but intended to continue their shipment to purchasers in other states where they would not be prohibited and subject to confiscation; that the machines had merely come to a temporary rest in Oklahoma; that sale and contract for delivery of some of the machines to other states had been accomplished before the machines came into Oklahoma, and that contracts of sale for the balance were under process of accomplishment. This character of evidence was excluded by the court.
[5] Appellants contend, as is conclusively shown, that these machines are not illegal in any respect in other states; it is also contended that they are not illegal subject matter here when set to play for amusement only; and that they were all in interstate commerce and for this reason not confiscable.
[6] The State contends that all of the machines are slot machines and the possession thereof in Oklahoma is illegal whether set for amusement or gambling purposes and that none of them were in interstate commerce.
[7] Intention not to use the machines in the State of Oklahoma and the intention to continue the shipment to other states where they would not constitute illegal subject matter and be subject to confiscation however operated are pertinent to the issue of whether or not the machines had come to rest in Oklahoma and the interstate character thereof destroyed or were still in interstate commerce. If the owners and consignors were bona fide in their alleged intention not to use these machines in this state and in their intention to continue the shipment outside this state temporary stoppage within the state would not destroy the interstate character of the shipment and would not subject the machines to confiscation. Missouri, K. T.R. Co. v. Ashinger, 1916, 63 Okla. 120, 162 P. 814, L.R.A. 1917D, 1180; Oregon-Washington R. Nav. Co. v. Pacific Continental Grain Co., D.C., 38 F. Supp. 230; 60 A.L.R. 1479 and 1484; 155 A.L.R. 944 to 948. The exclusion of testimony tending to prove these facts was erroneous and prejudicial.
[8] Reversed with directions to vacate the orders of confiscation and proceed in conformity with the views herein expressed.
[9] HALLEY, C.J., JOHNSON, V.C.J., and WELCH, ARNOLD, and DAVISON, JJ., concur.
[10] WILLIAMS, J., concurs in conclusion.
[11] CORN, O'NEAL and BLACKBIRD, JJ., dissent. *Page 339