The defendants were indicted by the Bergen County grand jury for violation of N.J.S. 2 A:112-2. They are the admitted owners of machines, commonly known as "pinball" games, which admittedly were found in operation in premises in the Township of South Hackensack, Bergen County. There were two machines, one owned by Frank Paul, defendant, and another owned by the other two defendants. The machines were located in the Brookside Diner, a diner restaurant.
The case came on for trial on Tuesday, December 11, 1956, and the facts were stipulated without the taking of testimony. In addition thereto, one of the machines was demonstrated in court.
The defendants were charged that on April 11, 1956 they unlawfully had and kept in the premises a device in the nature of a slot machine which could be used for the playing of money or other things in violation of N.J.S. 2 A:112-2.
It was stipulated that the machines were placed in the premises under an arrangement with the owner of the premises for mutual profit. At the time of the arrest, a group of approximately ten men were playing the machines.
When a certain score was hit, a free game or games registered on the machine, which would permit the men to play the machine without depositing additional coins. It was stipulated that a number of men, whose names were read into the record, would testify that they had played the machines over a period of months and that free games were obtained. The machines were opened in the presence of defendants and sums of money were found in each machine.
It was stipulated that there was no evidence of cash payments to any player for the free games. It was also conceded that the part of the machine which showed the number of free games was taped over on the inside of the glass covering the same, so that the number of free games won could not be seen by anyone, but this did not prevent the receiving of the free games.
It is also conceded by the State that no prize or commodity was given for the free game, except that the free game was given. Defendants contend that this free game is not a prize or thing of value.
The State contends that it could show testimony that the players (who are not defendants in this case) made side bets on the outcome of the games. The defendants object to this testimony as not binding on the defendants, but do not challenge the truth of this testimony, by reason of lack of knowledge. The defendants claim it is neither evidential nor material.
The machine was exhibited in court and pictures of the same marked in evidence. The machine was described by the court into the record, but it may be said that this was a typical machine known as a "pin ball game," as has been described in previously recorded cases on appeal.
On both sides of the machine are two devices called "flippers" which enable the player to prevent the ball from depositing at the bottom of the machine for a period of time, thereby permitting the manipulation of the machine by the player for a higher score. This is pointed out by the defendants as being evidence that skill is required in the playing of the game, and as being different from other machines.
The machine was played by the defendants' employee but his score was beaten by the clerk of the court who was directed to play by the court. Another employee played the game and received a still higher score, but in the demonstration no one received 6,000,000 points required for a free game.
The defendants in their brief on the law contend that
1. This a game of skill, not of chance.
2. There is no prize, so that it does not come under N.J.S. 2 A:112-2, which provides that 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.
1. In the case now before this court the machine differed in many respects from the machine ruled upon by Justice Wachenfeld in State v. Ricciardi , 18 N.J. 441 (1955). In that case the player could deposit more than one nickel and increase the odds returnable to the player. Unlike our case, the object was not to achieve the high numerical score but to light up lights in a row and the player had an opportunity to win as many as 200 free games. In the Ricciardi case there was evidence that the player could ...