On defendants' motion for judgment of acquittal.
Drewen, J.c.c. (temporarily assigned).
These defendants are separately indicted for the unlawful keeping of slot machines or machines in the nature thereof, "which may be used for the playing of (sic) money," in violation of N.J.S. 2 A:112-2 (formerly N.J.S.A. 2:135-2). The indictments against Liggio, Goldschmidt and Novicki were, with the consent of the accused, consolidated for trial together as one, and the said defendants having signed the appropriate waivers their cases were tried by me, sitting without a jury. Immediately upon the trial's conclusion the defendant Ricciardi likewise waived his right to jury trial and through his counsel stipulated with the State that all testimony, for the State and for the defense, previously adduced in the trial of the other three defendants should for all purposes be dealt with as the testimony in the trial of the indictment against the said Ricciardi.
Upon the conclusion of all the proceedings aforementioned, counsel for the four defendants moved for judgments of acquittal on the ground of a fatal variance between the indictments and the proofs, and also on the ground of the contended failure of the State to prove the respective offenses charged.
The statute above-cited under which the indictments are framed reads as follows:
"Any person who has or keeps in his place of business, or other premises, any slot machine or device in the nature of a slot machine, which may be used for the playing of (sic) money or other valuable thing, is guilty of a misdemeanor."
The single point to be decided is whether or not the machines here in question come within the language "or device in the nature of a slot machine." The defendants contend they do not. The machines are what are commonly known as pinball machines. They are described in complete detail in the opinion of the court in Hunter v. Mayor and Council of Teaneck Township , 128 N.J.L. 164 (Sup. Ct. 1942), p. 166 et seq. Specifically, the instant machines are not equipped for the players' making or recording of a high score. The result of a so-called "win" is ostensibly nothing other than the privilege of playing additional "free games," the number of "free games" won being recorded by the mechanism. The player initiates the operation by inserting a coin in a slot provided for the purpose. The coin makes available to the player, within the enclosure of the mechanism, the balls that are to be played by him. Each ball is in turn propelled by a released spring upward on an inclined plain, then rolling downward, making its chance contacts with marked and identified places and so determining the result of the venture. It is obvious that a machine of the type in question can be used in gaming for money simply by dealing with the free games won as entitling the player not to the games but to a designated equivalent in money. That is precisely what these defendants did. Not only is this not denied, it is expressly admitted, save in the case of the defendant Ricciardi, whose position in the proofs will be dealt with later.
As already stated, the question submitted by defendants' motion is not whether these machines were used for gaming, that being conceded, but whether, and notwithstanding such use, they can be regarded as "in the nature of slot machines." In their admission of a gaming use defendants make the
contention that the indictments should have been drawn not under N.J.S. 2 A:112-2 but N.J.S. 2 A:112-1, the pertinent portion of the latter section reading as follows:
"Any person playing for money or other valuable thing * * * at billiards, pool, tennis, bowls or shuffleboard, or A.B.C. or E.O. table, or other table * * * or with any slot machine or device in the nature of a slot machine, or with any other instrument, engine, apparatus or device having one or more ...