On appeal from the Bergen County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The query here is whether a machine or device, popularly called a "pinball" machine, comes within the interdiction of N.J.S. 2 A:112-2, which provides:
" Keeping slot machines for gaming
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 money or other valuable thing, is guilty of a misdemeanor."
Appellant owned and operated a vending machine business in the course of which he placed "pinball" machines in various store locations under an arrangement whereby he and the storekeeper split the revenue from the machines in accordance with a prescribed formula.
The "pinball" machines in question conform in their physical appearance to the usual device of this nature, and it is unnecessary to describe their physical characteristics.
To operate the machines, the player inserts one or more nickels in a slot provided for that purpose, and for each
nickel thus deposited the odds returnable to the player are increased. Unlike the usual "pinball" device, the ultimate object of the game is not to achieve a high numerical score but to cause the squares on the scoring surface to be lit up in a straight line, either vertically, horizontally or diagonally, in a manner comparable to the ancient and innocent game of tick-tack-toe. It a player were successful in attaining this goal, the machine would respond by rewarding him with as many as 200 free games.
Under the rules of play, each free game entitled the player to operate the machine anew without inserting additional nickels. However, from the testimony adduced at the trial, the trier of facts could conclude that the player had an option to realize his reward in a more mundane manner: by "cashing in" his free games with the storekeeper, the exchange rate being five cents for each free game won. When the player exercised this option, the storekeeper promptly pressed a device located at the bottom of the machine, thereby clearing the machine of "free games." According to the testimony, the pay-offs by the storekeeper were made under express instructions from the appellant, and the total amount of the pay-offs was subtracted from the total income of the machine prior to a splitting of the profits between the appellant and the storekeepers.
Appellant and three of the storekeepers were separately indicted by the Bergen County grand jury for violation of the aforementioned statute. The storekeepers waived a jury trial and their indictments were consolidated for trial, at the conclusion of which the appellant also waived his right to a jury trial and stipulated that all of the testimony adduced at the storekeepers' trial be considered as the testimony in the trial of his indictment.
The trial judge, after having observed a demonstration of the machines during the course of the trial, concluded the dominant factor in the play of the machines was chance and not skill. He found the appellant and his co-defendants guilty as charged in the indictment, and appellant was ...