L. C. BOIES, Sheriff of Maricopa County, Arizona, and Vernon La More, Deputy Sheriff of Maricopa County, Arizona, Appellants,
Joseph BARTELL, Appellee.
Robert Morrison, Atty. Gen., Wm. P. Manoney, Jr., County Atty., Lawrence C. Cantor, Deputy County Atty., Phoenix, for appellants.
Shute & Elsing, Phoenix, for appellee.
[82 Ariz. 218] PHELPS, Justice.
This is an appeal from the judgment and order of the trial court in favor of the plaintiff-appellee Joseph Bartell, and against L. C. Boies, sheriff of Maricopa County, and his deputy, Vernon La More. The appellee's suit was an action for replevin to recover certain digger machines which had been seized by the sheriff as gaming devices, and were allegedly being operated in Maricopa County in violation of the statutes of Arizona. Such statute, section 43-2701, A.C.A.1939, prohibits the use of gaming devices or machines and is now A.R.S. sections 13-431, 432 and 433, which states as follows:
'Conducting gaming-Participating therein-Penalty.-Every person who shall deal, carry on, or open, or cause to be opened, or who shall conduct, either as owner, proprietor or employee, whether for hire or not, any game of faro, monte, roulette, lasquenet, rouge et noir, rondo, vingt-un, or twenty-one, poker, stud poker, draw poker, bluff, fan tan, thaw, seven and one-half, chuck-a-luck, blackjack, 'panginki,' or any other similar game whatsoever, played with cards, dice, or any other device, and every slot machine, punchboard, or machine of like character, whether the same be played for money, checks, credits or any other representative of value within the state of Arizona; and every person who shall participate in any of the above-enumerated games dealt, carried on or opened or caused to be opened by any other person in the state of Arizona, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars ($100), nor more than three hundred dollars ($300), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment.' (Emphasis supplied.)
The uncontroverted facts show that on March 24, 1955, deputy sheriffs entered three different business locations in Maricopa County, near the city of Phoenix, and deposited coins in and operated and manipulated the machines in question. They thereafter seized the machines and transported them to the sheriff's office storage room. The property allegedly wrongfully seized and possessed by the sheriff was described as two Superscope Digger Amusement Devices and one Mutoscope Digger Amusement Device.
At the trial (which was without a jury) these devices were also referred to as 'Claw' machines and 'Crane' machines. Expert witnesses testified as to the mechanical operation of the machines, and stated their opinions as to the relative elements of chance and skill in the mechanical operation of these devices. The testimony developed that a 'digger' machine is a mechanical machine or device. It is a [82 Ariz. 219] rectangular cabinet, the upper part of which is encased in glass. On the base of the glass covered upper part, lying on loose pieces of candy, like gravel, are placed metal figurines of animals or other objects. These figurines have parts or protuberances or 'holds' which, if grasped by the claw in a particular manner, will enable them to be lifted from the various positions in which they are 'dressed' (placed or arranged) in the candy bed. Suspended above this base is a miniature crane or boom from which a claw hangs. The player of the machine decides which article he wishes to pick up and how he will go about it. In so doing he may use the setting on an indicator in the back of the case. The markings of the indicator are designed to show the relative position (back or front) of the place where the claw will fall from the different positions to which the boom can be moved according to pattern. The boom is connected to a control wheel so that the player can move it to the right or left with a synchronized movemant of forward or backward to his selected position, or, cause the claw to swing into an area not regularly followed by the predetermined machanical pattern of the machine. This predetermined pattern
is called the 'star pattern.' After the boom is placed in the desired position by moving it to the right or left by means of the only mechanized control on the device, the insertion of a coin starts the operation of the mechanism connected to the boom; it them swings and the law drops. If an article is sufficiently grabbed by the law it is picked up and deposited in a chute which delivers it to the player as a prize. The player has no mechanized control of when the claw opens or when it closes nor of the precise spot on which it will fall. Unless the digger is made to swing pendulum-wise it will automatically fall on the spot mechanically predetermined by the machine.
Witness Dr. E. Paul De Garmo, a professor of Industrial and Mechanical Engineering of the University of California, testified by deposition that, in 1939 he had made various tests with machines similar to those in controversy; that he had recently played similar machines; that his tests indicated to him that the results of the operation of the machines were determined predominately by chance because the boom follows a predetermined star pattern; the claw is not designed to pick up smooth objects; and the level of the candy and placement or dress of the objects in the candy bed affect the degree of success in picking up the figurines.
Witness Joseph Bartell testified that he owned and manufactured these digger machines in the Phoenix area; that he operated them for profit; that when players won figurines they could be sold to him or the owner of the business establishment where the machines were located, for $1; [82 Ariz. 220] that the manner of dressing the machine can determine the degrees of success; that in his opinion the average player would win once in twenty-five attempts and then testified that, the game is 90% skill. The record also shows that he played the machines in the court room without success.
Dr. Paul L. Kirk, professor of cirminalistics of the University of California, testified that he examined the machines in evidence; that he had extensively tested a similar machine in 1951, using rubber balls in place of the figurines for many of the tests; that rubber balls were easier to pick up because of their size and shape and grip; that the manner of dressing the machine affected the degree of success because of (1) the various holds; (2) the mechanical star pattern; (3) the level of the candy bed; that objects could be picked up by causing the claw to swing like a pendulum outside the star pattern; that some people are more skillful in this endeavor than others; that judgment, coordination and dexterity are necessary elements of this skill; that with practice a player could become skillful but to do so would require many weeks and the player would have to play frequently enough to retain his skill. He said he was in no position to say what the average person would do; that in his opinion his special tests rule out all possibility of chance being a major factor; and that, although there is some element of chance he believed skill outweighs chance from 8 to 10 times.
Witness Leon C. Sidebottom, a California digger machine manufacturer, expert operator and lessor, testified that he has been in the business for seventeen years; that he manufactures the 'Sidebottom' machine (a machine similar to those in evidence in this case); that the machine is designed and operated for profit; that the manner in which a machine is dressed affects the degree of success; that in his opinion skill predominates over change; and that the tougher a machine in set up (dressed) the more skill it takes to take things out. The record also discloses that the witness played the machine in the court room five times and that he was successful twice.
Two witnesses (deputy sheriffs) testified for the defendant that they had separately played the machines in evidence prior to seizing them; that though each had played the machines 10 times the entire only success was as a result of the first coin experiment resulted in only one win. The
played without any manipulation or presetting of the locator. This was certainly by pure chance.
A careful analysis of the above evidence shows that the chief witnesses agree that chance is an important element of the operation of a digger machine, but they disagree as to the question of whether skill [82 Ariz. 221] or chance predominates in the operation of the device. The evaluation of the witnesses for appellee is based principally upon their knowledge of the mechanism of a digger machine and upon observation of players largely of long and continuous experience.
Appellants argue and appellee agrees that, the sole question presented upon this appeal is whether there is substantial evidence in the record to support the trial court's judgment. It is our view that such judgment is not supported by the evidence for the reasons we will hereinafter point out.
Appellants argue that section 43-2701, supra, prohibits the use of gaming machines and they argue that all the evidence points to the fact that the digger machines in question are gaming devices. A specific provision of this statute makes it a misdemeanor for a person to carry on or participate in the games specified in the statute, 'or any similar game whatsoever played with cards, dice or any other device, and evey slot machine, punchboard, or machine of like character.' The question here is: Does a digger machine fall within ...