dissent">

Dissenting Opinion.

Alexander, J.,

delivered a dissenting opinion.

I am constrained to dissent from the views of the majority of the court, because of the conviction that the challenge of the device is not primarily to the intellect, but to the gambling spirit or instinct. The robe of respectability with which it sought to be clothed is insufficient to hide its naked purpose. ■ The player wins or loses something on every play. To charge that all slot machines are gambling devices would be as unjust as to save gambling devices from seizure because the amount of winnings depends upon the intelligence quotient of the player. It is not an indictment against our youth to suggest that if two such machines were placed side by side, one to stimulate the intellect, and the other to stimulate the betting instinct, the latter would be the better investment for the owner. When both features are combined in one machine, human experience can predict with certainty a total eclipse of the intellectual factor.

In the case before us, when the query card, or question, comes up, the operator either (1) does not know the answer, or (2) does know it. In the former event he has either (a) lost his bet, or (b) he may prolong the chance factor by a haphazard guess; in the latter event the appearance of a card or question whose answer he knows, is equivalent to the winning of the chance upon which he hazards his coin. He has thereupon won his bet, and, moreover, knows this. Thenceforth it is a mere matter of cashing in on his good fortune. Further operation consists of pressing the proper key, and the pay-off follows mechanically. Such operation is quite analogous in simplicity and certainty to the formal demand upon a croupier to make payment to a player for whom the turn *289 ing of a roulette wheel has transformed uncertainty into certainty.

Is it different in principle or as an appeal to the gambling instinct, that in one case a card which turns up is an ace instead of a deuce, while in another case it is known, instead of unknown?' In either case the hazard is finally resolved upon the disclosure of the card, and the collection of the stake becomes merely a mechanical detail.

In the instant case the gamble is that the operator will turn up a card or question whose querry he can answer, plus the additional chance that he answers promptly. The operation of the device does not create knowledge; it merely reveals it. He has won or lost when the card turns up. Nor can it he exonerated from condemnation because it gives some play to intellectual preparedness. The factor of chance vitiates the entire operation. It cannot be leavened into legality by a few grains of sense. The operation is at-best a mulatto product of the union of luck and learning. Its status and stigma are the result of this infusion of chance. It illustrates the simple truth that that which is half clean is soiled. Plainly from the language of the statute (chap. 353, Laws 1938), it is a “slot machine” which delivers something “of value in varying quantities;” plainly from the spirit of the statute, it is a device calculated to “attract the youth and educate them in the gambling spirit.”

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