(dissenting in part). With respect to count ii, I agree with the reasoning and the decision to reverse the trial court and to remand the case for further proceedings consistent with the majority opinion.
With respect to count i, I disagree with the position of the majority. The trial court properly quashed count i pursuant to § 2 of MCL 750.303; MSA 28.535, which provides an exemption of certain designated devices from § 1 of the act.
In the instant cases, the circuit court found that the video poker machines came under the exemption because they were limited to fifteen replays. The circuit court held that the district court abused its discretion by binding over the defendants for trial on count I.
Count i is predicated on the fact that the machines were used for gambling. The machines had separate counters that tabulated "points” on the basis of how the player played against the machines and the player was paid in cash on the *315basis of accumulated points. Winning added points and losing deducted them. The exact formula for paying off on the basis of the points is not part of the record. The machine itself does not pay off for the accumulated points.
The prosecutor argues that because the points recorded on the machines were used to determine a cash payoff to players they were not exempt under the statute. Defendants argue that because the machines do not violate the statute they can be used for gambling. I disagree with both positions.
The machines in question do not violate the statute per se, and they are exempt from the provisions of § 1 by virtue of MCL 750.303(2); MSA 28.535(2). The machines meet the physical requirements laid down by the statute for exemption. Section 1 of the act is intended to punish possession of nonexempt devices as well as aiders and abettors in that possession. The statute does not make it lawful for possessors of exempt machines to use them for gambling.
The prosecution’s problem is that the Legislature failed to cover all the bases when it wrote the exemption. The Legislature addressed the amount of replays a machine can accumulate. It did not address the point-counting aspect of such a machine. If the Legislature intended not to exempt machines that had cumulative point counters, the Legislature was obligated to spell it out. The authors of this statute did not sufficiently delineate the exemption to exclude the machines in these cases.
I would affirm with respect to count i, reverse with respect to count n, and remand for further proceedings regarding count ii.