*432Dissenting Opinion by
Mr. Justice Bell:Seventeen pinball machines were seized by the Pennsylvania State Police at various establishments in Fayette County on June 20, 1957, including the American Legion Post No. 51. The Quarter Sessions Court sustained the position of the Commonwealth that these machines were gambling devices per se under the provisions of §60 of the Act of March 31, 1860, P. L. 382, 18 PS §1445. There was no testimony offered to prove that actual gambling took place on or in connection with these machines,* or that money or merchandise, or anything of value, had ever been paid to the winners. So far as the record shows, the only prize or reward which a winner received was the right to play free additional games, and this is not unlawful gambling. Furthermore, although it is easy to believe that the machines were frequently used for unlawful gambling, the evidence in this record does not, in my opinion, justify the majority’s conclusion that these machines were manufactured or used and employed solely for the purpose of unlawful gambling.
Section 60, supra, provides: “It shall and may be lawful for any sheriff ... to seize upon, secure and remove any device or machine of any kind, character or description whatsoever, used and employed for the purposes of unlawful gambling** . . , and to arrest . . . any person setting up the same . . . and the said court . . . if satisfied that such device or machine was employed and used for the purpose of unlawful gaming as aforesaid, shall adjudge the same forfeited, and order it to be publicly destroyed . . . .”
*433The question involved is whether these pinball machines — considering the details of their construction and the evidence in the case — are illegal per se. Neither gambling, nor unlawful gambling, nor “a device or machine used and employed for unlawful gambling” is defined in the Act. There is no doubt that if and when these or any other machines are actually used for unlawful gambling they are illegal and may be seized and confiscated by the Commonwealth.
It is Hornbook law that a Penal Statute must be strictly construed: Act of June 24, 1939, P. L. 872, 18 PS §5104; Act of May 28, 1937, P. L. 1019, Art. IV, §58, 48 PS §558; Commonwealth ex rel. Varronne v. Cunningham, 365 Pa. 68, 73 A. 2d 705; Commonwealth v. Morgan, 278 Pa. 395, 123 A. 337; Commonwealth ex rel. Keiffer v. Ceraul, 182 Pa. Superior Ct. 511, 128 A. 2d 187. Admittedly there is no evidence that these machines were used or employed for the purpose of unlawful gambling. Moreover, in my judgment, if these machines can be used either for pleasure or for unlawful gambling purposes, that is not sufficient to make them illegal per se, or to justify their confiscation and destruction by the Commonwealth. The evidence and the aforesaid authorities furnish a complete and decisive determination — adverse to the Commonwealth— of the question involved in the instant case.
In view of the fact that the argument and the various Court opinions have taken such a wide range, I shall discuss several of the points relied upon.
What is unlawful gambling, and what is a gambling device or machine within the meaning of §60? It may be helpful to also consider §604* of the Act of June 24, *4341939, P. L. 872 (The Penal Code) which provides: “Whoever makes, manufactures, or assembles any punch board, drawing card, slot machine, or any machine or device used or intended to be used for gambling, is guilty of a misdemeanor . . . .” Gambling itself is difficult to define; however, it involves the payment to the winner of money or something of value, and it is not limited to games or bets which are dependent solely upon chance; bets on games, or playing machines, etc., for money or something of value, even though the games or machines involve a combination of both skill and chance, and can be played for pleasure, may amount to unlawful gambling: Cf. Wigton’s Return, 151 Pa. Superior Ct. 337, 30 A. 2d 352.
A few examples will illustrate my differences with the majority and additional reasons for my dissent.
A backgammon board can be used for pleasure or for gambling* — it is common knowledge that it is usually used for purposes of gambling, and in the latter event a few dollars change hands. A bridge table can be used for pleasure or for gambling; it is common knowledge that it is usually used for gambling. The players play for l/40th of a cent to a penny a point, and ten cents to a few dollars change hands every evening. In each of these games a vast majority of the players are unskillful, and those who are inexperienced or unskillful loudly proclaim to uninterested companions that the winners won by chance, i.e., the roll of the dice or the luck of the draw, and that chance is far more important than skill. Take an extreme example: *435A golf course is built for recreation, exercise, air, companionship and (when you are playing well) for pleasure. Yet it is a matter of common knowledge that in nearly every golf match the players bet a dollar on the match, or a dollar Nassau,* or the drinks, and a few dollars change hands in the Clubhouse on the 19th hole. I am convinced that no one could successfully contend that all bridge tables, all backgammon boards, and all Clubhouses which have a 19th hole, are illegal per se and can be seized, confiscated and destroyed by the Commonwealth.
"What disturbs me is that if we hold that these particular pinball machines are illegal per se, very many other tables, devices, machines and clubhouses, which can be used for recreation and pleasure, but are frequently used for some gambling, would have to be ruled illegal per se under The Penal Code of 1939.
For these reasons I dissent.
20 other machines which were actually used for gambling purposes at the time of their seizure, were validly confiscated by the police.
Italics throughout, ours.
Section 605 of the Act of June 24, 1939, P. D. 872 provides: “Whoever sets up or establishes . . . any game or device of address, or hazard, at which money or other valuable thing may or shall be played for, or slaked or betted upon ... is guilty of a misdemean- *434or ... . This section shall not be construed to apply to games of recreation and exercise, such as billiards, bagatelle, ten pins, etc., where no betting is allowed.” In my judgment, by using “may”, this section is unconstitutional.
See also other examples given in the illuminating dissenting opinion of Mr. Justice Mttsmanno.
This does not include special golf tournaments following a Calcutta pool, or other auction.