State ex rel. Harman v. Doe

Hays, J. 'The sole issue to be determined on this appeal is whether or not pinball machines which in the course of each game may give the player one or more additional balls to shoot are gambling devices under section 726.5, Code of 1962. [815] This Code section reads as follows: Possession of gambling devices prohibited. “No one shall, in any manner or for any purpose whatever, except under proceedings to destroy the same, have, keep, or hold in possession or control any roulette wheel, klondyke table, poker table, punchboard, faro, or keno layouts or any other machines used for gambling, or any slot machine or device with an element of chance attending such operation.” The pinball machine in question is coin operated and known as the “flipper type”. Each player upon inserting a dime is assured the privilege of shooting at least five balls which constitutes a game. The ball is propelled to the top of the board by a spring device and it then rolls by gravity to the lower area of the board, where it can again be propelled to the top of the board by use of the flippers, which are actuated by the player by use of a button located on each side of the machine. There are located on the surface of the board bumpers which rebound the ball by their own force, or by an electrically motivated force, and a score is recorded for contacting the bumpers or passing through certain gates. If during the game the player makes a score of 2000 the player receives an extra ball. If during the play the ball makes contact with a particular bumper or a gate the player may receive an extra ball. It is conceded that the machine does not issue merchandise or tokens, nor is it possible to receive a free game, only free balls. The legislature under the inherent police power of the State has seen fit to legislate upon the problem of gambling by enacting the statutes here involved. There can be.no question but that the machines in the instant case are devices with an element of chance. This the legislature says constitutes such device as a gambling device. It is urged by appellants that this device contains no more of an element of chance by granting play of an additional ball than is found in a baseball game or a bowling alley and certainly such would not be condemned under the statute. As to that we make no comment as such issue is not before us, but we do say that these machines are clearly gambling devices under the clear wording of the statute. The validity of the statute is not attacked and whether it be a. wise enactment or not is not for this court to say. [816] In State ex rel. Manchester v. Marvin, 211 Iowa 462, 233 N.W. 486, we held a machine that at times awarded tokens, good only for a replay of the machine, constituted the machine as a gambling* device. In State v. Wiley, 232 Iowa 443, 3 N.W.2d 620, we held an amusement machine which at times gave the player an additional free game is prohibited by the statute. Here these machines give player one or more additional balls to shoot as part of a game in which at least five balls are assured. Free tokens of no intrinsic value, free games, or free balls as part of a game — differ only in matters of degree and have been condemned by the legislature. We see no reason or basis fop changing the rule announced in the Wiley case. If a, change is desirable it is for the legislature to make, not the courts.— Affirmed. Garfield, C. J., and LaRSON, Thompson and Thornton, JJ., concur. Moore, PetersoN, Snell and Stuart, JJ., dissent.