AGO 1952 No. 216 - Jan 17 1952
GAMBLING DEVICES ‑- "IRON CLAW" MACHINES.
1. "Iron claw" machines constitute gambling devices under our statutes.
2. The method of pay-off [[payoff]], as long as there is a pay-off [[payoff]]of some kind which induces the player to play, is of no particular significance in determining whether such machines are gambling devices.
3. Determination of use is a matter for local law enforcement officials.
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January 17, 1952
Honorable Charles O. Carroll
King County Prosecuting Attorney
County City Building
Seattle 4, Washington Cite as: AGO 51-53 No. 216
Attention: !ttMr. K. G. Smiles, Chief Civil Deputy
You request our opinion on several questions which may generally be paraphrased as follows:
(1) Whether machines commonly known as iron claws, diggers, traveling cranes, rotaries or similar mechanical devices, constitute gambling devices.
(2) Whether such status is altered by the method used to accomplish the pay-out to the player.
We conclude that:
(1) Such instruments do constitute devices "commonly used for gambling" within the contemplation of our statutes though the legality of the use or operation thereof in particular instances requires determination of factual matters not discernible from your request.
[[Orig. Op. Page 2]]
(2) The method of pay-off [[payoff]], as long as there is a pay-off [[payoff]]of some kind which induces the player to play, is of no particular significance in determining whether such instruments are gambling devices.
From your request, it appears that the questions are propounded as a result of inquiries made by the Federal Bureau of Investigation, United States Department of Justice, in connection with public law 906 of the 81st Congress, which restricts interstate transportation of gambling devices. What we have to say herein is not to be construed in any way as an interpretation of the Federal act; our opinion is limited to an analysis and interpretation of our own laws.
Inasmuch as reference is made, both in the Bureau's letter to you and your letter of transmittal to us, to RCW 82.28.020 [Rem. Rev. Stat. § 8370-96 as last amended, 1949 Supp.], it should be pointed out initially that such statutory provision relates solely to the payment and collection of a tax and is not determinative of liability under the criminal law and such is specifically provided in the preamble to the section above.
Of more particular significance here are the provisions of RCW 9.47.030 [Rem. Rev. Stat. § 2472], which reads as follows:
"Every person who shall have in his possession or shall permit to be placed or kept in any building or boat, or part thereof, owned, leased or occupied by him, any table, slot machine, or any other article, device or apparatus of a kindcommonly used for gambling, or operated for the losing or winning of any money or property, or any representative of either, upon any chance or uncertain or contingent event, shall be guilty of a gross misdemeanor." (Emphasis supplied).
In the recent case ofMiller v. City of Spokane, 35 Wn. (2d) 113, 211 P. (2d) 165 (1949), our court specifically held that pinball games contain no element of skill, quoting with approval from State v. Coates, 158 Ore. 122, 74 P. (2d) 1102 (1938):
"* * * to say that the operation of pinball or slot machines involves any substantial degree of judgment or skill severely strains the credulity of any reasonable minded person."
[[Orig. Op. Page 3]]
The court, in the decisions it has approved, has ruled that three elements are necessary for machines to be considered as gambling devices ‑ (1) risk of something of value (consideration), (2) a prize, and (3) chance, a risk of loss or winning. There is no question but that two of the foregoing three requisites of a gambling device are present in each illustration presented by you. The important matter of inquiry therefore revolves about determination of the presence or absence of the third requisite, namely, chance, or substantial degree of skill as referred to in the cases.
At this point, of course, it would be of distinct assistance to have before us a factual summary as to the mechanics and details of the operations of each device involved to determine whether there is any element of skill involved or more important, whether skill predominates over chance. Your correspondence merely states "In these machines it can be generally said that they are subject to a degree of control by the player." In the absence of having before us detailed information as to the operations of the specific machines in question, we can only turn to a review of court decisions involving similar devices.
If both elements of skill and chance are present, the test is whether the element of chance predominates over the element of skill, or whether the element of chance is present in such a manner as to forte the element of skill. Commonwealth v. Plissner, 295 Mass. 457, 4 N.E. (2d) 241 (1936), Commonwealth v. Ward, 281 Mass. 119, 183 N.E. 271 (1932).
We have uncovered no Washington case specifically dealing with these devices. However, all American cases we have located dealing with these or similar apparatuses support the conclusion that chance is intended to and does predominate, and the controlling inducement for playing the machines is the securing of a prize. SeeCommonwealth v. Plissner, supra; Commonwealth v. Ward, supra; Commonwealth v. Lake, 57 N.E. (2d) 923 (Mass. 1944); McKay v. State, 65 Okla. Cr. 149, 83 P. (2d) 611 (1938); State ex rel. Igoe v. Joint, 241 Mo. 788, 110 S.W. (2d) 737 (1937); see alsoRobey v. Mantell, 175 Md. 690, 1 A. (2d) 82 (1938); see also 135 A.L.R. 104-188 (1941) superseding 60 A.L.R. 343 (1929). For your information, we note the English rule may be otherwise. Ankers v. Bartlett, 1 K.B. 147 (Eng. 1936); Davis v. Parker, 2 K.B. 210 (Eng. 1931). Both these decisions were by divided court.
The Washington case rationale harmonizes with the American rule. Miller v. Spokane, supra; State v. Parent, 156 Wash. 604, 287 Pac. 662 (1930) [crap-tables, chips, etc.];State v. Wong Took, 147 Wash. 190, 265 Pac. 459 (1928) andState v. Chin Kee Woy, 147 Wash. 194, 265 Pac. 460 (1928) [both Chinese lotteries];State [[Orig. Op. Page 4]] v. Danz, 140 Wash. 546, 250 Pac. 37 (1926) [theater bank nights];Society Theater v. Seattle, 118 Wash. 258, 203 Pac. 21 (1922) [bank night]; Dwyer & Co. v. Seattle, 116 Wash. 449, 199 Pac. 740 (1921) [silent salesmen]; see alsoD'Orio v. Jacobs, 151 Wash. 297, 275 Pac. 563 (1929) [skill held to predominate in checkers].
Accordingly, as a result of the judicial attention which has been accorded similar apparatuses by the courts, it is our opinion that within the contemplation of Rem. Rev. Stat. § 2472, supra, the enumerated devices are such as are "commonly used for gambling." Though as heretofore indicated, we cannot on the basis of the information before us, advise that such devices, though "commonly used for gambling," would in all cases be held to be gambling devices in the actual use thereof, regardless of the mechanics and details of operation, and in particular cases that might conceivably reflect a predominance of skill over chance. This is properly a matter for determination by the local law enforcement officials.
The other facet of your question concerns the matter of pay-off [[payoff]]or return to the player in case he wins no prize delivered directly by the particular device in question. In our opinion, it is completely immaterial as to the degree of ingenuity that the owner of such machines may indulge in in an attempt to circumvent our criminal statutes, as long as the heretofore referred to three basic elements of consideration, chance and prize remain unchanged. As long as there exists an inducement to the player which causes him to deposit his coin in anticipation of gaining something beyond that assured to him from the use of his coin the element of prize is present. See cases cited 148 A.L.R. 882-884. See also note 38 A.L.R. 73 (1925) and 81 A.L.R. 177 (1932); also 24 Am.Jr. 423, § 35 and supplement.
Very truly yours,