WHETHER A PUNCHBOARD IS A GAME OF SKILL OR A GAMBLING DEVICE
Whether a punchboard used as a trade stimulator is a gambling device would depend upon questions of fact involved.
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July 10, 1951
Honorable Robert S. Campbell, Jr.
Ephrata, Wash. Cite as: AGO 51-53 No. 87
On April 13, 1951 you asked our opinion as to whether a certain trade stimulator is a game of skill or a gambling device.
The question of whether a particular activity is a game of skill or a gambling operation depends very largely upon the facts involved. We quote from your letter as follows:
"The trade stimulator consists of a board consisting of approximately one thousand holes, commonly referred to as a punchboard. This board is designated as a quizmaster game of knowledge and each punch will cost the person punching it ten cents. On the punch is a question and the operator of the board has an answer book to the numbered questions. On each punch, if the person punching out a ticket answers the question correctly, he receives a ten cent candy bar. There are certain numbers on the board on which there are questions and which, if answered correctly, will entitle the person taking the punch to a one pound box of candy. The person who answers the last question correctly in each section receives a box of candy. In other [[Orig. Op. Page 2]] words, the person taking the last punch does not necessarily win the box of candy. It is the person who has answered the last question correctly. This is true of each section and also the last question answered correctly on the board. In addition, all candy which has not been won by persons answering the questions correctly accumulates, and the person answering correctly the last question on the board receives all of the remaining candy. The board is supposed to contain an amount of merchandise which, if sold retail, would be equivalent to the gross receipts from the merchandise of the board."
The facts involved in the case of D'Orio v. Jacobs, 151 Wash. 297, 275 Pac. 563, are somewhat comparable to the facts you have stated. There the device used was a game in which the purchaser punched a number out of some 400 holes perforated in a board, and on each number was a checker problem. If the purchaser then solved the checker problem correctly he received a prize.
The court quoted quite extensively from two previous opinions of other courts which involved the same board and held that the device constituted a game of skill, saying in part:
"Truly, we will examine critically to see whether there is an intent to evade the law, and we have so studied this case. Here, however, we are unable to see such an attempt. This is a penal statute and must be strictly construed, and we find in it no attempt to forbid games of skill or to bar the ordinary chance or contingency which is involved in practically every human endeavor. This is not a device which appeals to the gambling spirit, or such as is likely to engage the interest of the young and inexperienced. To us it would seem to appeal only to experienced checker players who may desire to pit their skill against the expert knowledge of the inventor of the device. The prize seems inconsequential, as compared with the thrill of victory."
A similar question was involved in Question Game Company v. Pioneer, 273 Ill. Appeals 183 [[273 Ill. App. 183]]. We quote from syllabus as follows:
[[Orig. Op. Page 3]]
"Where a punch board has cells which are filled with slips of paper containing questions on a wide range of subjects, and the element of knowledge predominates over the element of chance in its use, and it lends itself more readily to educational entertainment than to gambling operations, it is not inherently a gambling device within the statute."
The device involved in the case of Rouse v. Sisson, 190 Miss. 226, 199 So. 777, was quite comparable to the method herein used, although in the Sisson case the device used was an electrical coin operating machine rather than a punch board. The player deposited five cents in the coin receptacle, whereupon one of the rendered questions appeared in full view behind a glass plate, and simultaneously therewith, an automatic timing device started operating so that the player must answer the question within the time allowed.
The majority of the court held that such device was not a gambling machine, but was a game based upon skill.
It is to be noted that two justices dissented, each filing an opinion.
Of course, the final determination of whether a particular device, such as the trade stimulator you mention, is a gambling device, is a question of fact. Much might also depend upon the method used by a particular operator in the operation of such trade stimulator, in that such operator might conceivably so operate the same as to make the element of chance predominate.
Our statutes, R.R.S. 2464, 2465 and 2466 (RCW 9.59.010, 9.59.020, and 9.59.030) and 2472 R.R.S. (RCW 9.47.030) are as broad and all inclusive as would seem reasonably possible.
We believe from what you have related, however, that you would be justified in not holding that the trade stimulator in question is a gambling device, and in allowing such trade stimulator to be used in your county, so long as the operators of such trade stimulant keep the operation thereof within the sphere of operations which would appear to make the same a game of skill.
Very truly yours,