Original Proceeding. Application of Louis Pierotti for a writ of habeas corpus. Writ issued.
Norcross, Thatcher & Woodburn, for Petitioner.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General; L. D. Summerfield, District Attorney, and W. M. Kearney, Deputy District Attorney, for Respondent.
By the Court, Sanders, J.:
The thing or device denominated in the complaint a lottery is a nickel-in-the-slot machine. The act complained of is that the petitioner wilfully and unlawfully set up a nickel-in-the-slot machine in his place of business at 128 Commercial Row, in the city of Reno, Nevada.
The offense charged, with the word lottery entirely removed therefrom, would be a public nuisance.
Every place wherein any gambling game or device is kept, or any article, apparatus, or device useful therefor is kept, shall be a public nuisance. Rev. Laws, 6561.
1. Nickel-in-the-slot machines have a well-defined meaning in criminal law.
Slot machine by which the player has a chance of losing the amount he plays is a * * * gambling device. Territory v. Jones, 14 N. M. 579, 99 Pac. 338, 20 L. R. A. (N.S.) 239, and note, 20 Ann. Cas. 128, and note; 12 R. C. L. pp. 721, 726, 728, 729.
It would be idle for us to deny that chance is the material element in the operation of such machines. The player hopes to get cigars or drinks for nothing. The dealer hopes chance will save him from giving something for nothing. If it were not the chance to win cigars or drinks, the customers of the dealer would not use the machine. Lang v. Merwin, 99 Me. 486, 59 Atl. 1021, 105 Am. St. Rep. 293.
Since the year 1901, in this jurisdiction, nickel-in-the-slot machines played for cigars and drinks (now, per
force of the statute, nonintoxicating drinks, Stats. 1919, p. 1) are expressly brought within the purview of gambling statutes. Stats. 1901, c. 13, 1905, c. 52, 1907, c. 212, 1908-1909, c. 210, 1913, c. 149, and 1915, cc. 30, 284.
2. At common law gaming or the synonymous term gambling, was not in itself unlawful, and is not now eo nomine a crime, unless so made by statute. 12 R. C. L. 708. But at common law all public gaming-houses were nuisances, not only because they were deemed great temptations to idleness, but also because they were apt to draw together great numbers of disorderly persons. Scott v. Courtney, 7 Nev. 419. 3. Our legislature, in the exercise of its powers over the policy and morals of the people, found it desirable to declare every place wherein any gambling game or device is kept, or any article, apparatus, or device useful therefor is kept, to be a public nuisance. But in 1915 the legislature (Stats. 1915, c. 284), in legislating upon the subject of gambling, found it desirable and expedient to modify the stringent provisions of the antigambling law by inserting therein a proviso:
Provided, however, that nothing in this paragraph shall be construed as prohibiting social games played, only for drinks and cigars served individually, or for prizes of a value not to exceed two dollars, nor nickel-in-the-slot ...