NO. 82-272 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsSAM JOHNSON, CHRIS JOHNSON, PAT (DOE) 

HAP.IILTON AIJD ROBERT GRAHAM 

CLEF?!< C!: S I?::.-,':s- ,. , '.I'NT Defendants and Respond-ents. STWL c,: c",,:~ i.,iix 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Madison, The Honorable 

Mark P. Sullivan, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Loren Tucker, Virginia City, Montana 

For Respondent r 

Chester L. Jones, Virginia City, 14ontana 

--. ----- -*-- 

Submitted: January 10, 1983 

Decided: March 17, 1983 

Filed: p? !; rj 3, 2 983 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendants were charged with the offenses of maintaining a 

bingo/keno game in which cards/chances may be purchased in excess 

of $.SO in violation of section 23-5-412, MCA, and using, 

possessing, operating, keeping, and maintaining a slot machine in 

violation of section 23-5-104, MCA. 

Af ter consolidation of the charges against defendants, the 

District Court of the Fifth Judicial District in and for the 

County of Madison, dismissed both counts against all defendants. 

The State appeals. 

Defendant, Robert Graham, is the owner of The Blue Anchor Bar 

and Cafe in Twin Bridges, Montana. Defendants, Sam and Chris 

Johnson own, and defendant, Pat (Doe) Hamilton works at, the 

Longbranch Saloon and Supper Club in Ennis, Montana. On April 

22, 1982, the Madison County sheriff enlisted Dillon police officers to investigate the Longbranch and The Blue Anchor af ter the 

sheriff received information that keno machines in Madison 

County were paying cash rewards. At each of the bars the police 

officers found a machine labeled "High Country Keno." Each of 

the machines displayed a sign which read: "Win $100.00." 

The officers investigated the machines at the two establishments for approximately five hours. Apparently, the machines are 

operated by inserting coins into a slot on the machine. Each bet 

costs $.25 and up to eight bets can be purchased on a single 

play The officers gambled $29 .50 in the course of their 

investigation and won $12.50. The prize money did not come 

directly from the machine, but was paid to the officers by 

Hamilton and Graham. 

On May 20, 1982, the State obtained leave to file an 

Information against all defendants. On that day, Informations 

were filed charging defendants Johnson and Hamilton, and defendant, Graham, with Count I; violations of section 23-5-104, MCA, 

using, operating, possessing, keeping, and maintaining a slot 
machine, and Count 11; violations of section 23-5-412, MCA, maintaining a bingo/keno game in which cards/chances may be purchased 

in excess of $.SO. 

On July 1, 1982, the Johnson-Hamilton case and the Graham 

case were consolidated by order of the District Court. On July 

16, 1982, the District Court entered an order dismissing both 

counts against all defendants. In the order the District Court 

stated both counts were dismissed for lack of probable cause. 

The State appeals from the District Court's ruling. 

The issues raised on appeal are as follows: 

1. Whether the District Court erred in dismissing Count I of 

the Information which charged defendants with the illegal 

possession of a slot machine in violation of section 23-5-104, 

MCA, for lack of probable cause. 

2. Whether the charge contained in Count I1 of the 

Information states an offense under section 23-5-412, MCA. 

3. Whether the District Court erred in dismissing Count I1 

of the Information which charged defendants with maintaining a 

bingo/keno game in which cards/chances could be purchased in 

excess of $.50 in violation of section 23-5-412, MCA, for lack of 

probable cause. 

Count I of the Information charged defendants with the illegal possession of a slot machine. Slot machines are defined by 

section 23-5-101, MCA: 

"(1) A slot machine is defined as a machine 

operated by inserting a coin, token, chip, 

trade check, or paper currency therein by the 

player and from the play of which he obtains 

or may obtain money, checks, chips, tokens, or 

Paper currency redeemable in money. 

Merchandise vending machines where the element 

of chance does not enter into their operation 

are not within the provisions of this part." 

Section 23-5-104, MCA, states it shall be a misdemeanor to 

"use, possess, operate, keep, or maintain for use" any slot 

machine. The affidavits of probable cause filed with the motions 

for leave to file Information by the State states investigating 

officers placed bets from one to eight quarters per game, into 
machines labeled "High Country Keno ," at establishments owned by 

defendants. At each establishment the officers were able to put 

a quarter(s) into the machine, the play of which won $12.50 paid 

by the bartender. 

The District Court dismissed Count I of the Information for 

lack of probable cause. The District Court held "High Country 

Keno" is essentially the same as the "Raven Keno Game" which this 

Court ruled legal in Treasure State Games v. State of Montana 

(1976), 170 Mont. 189, 551 P.2d 1008. Section 46-11-2011 MCA, 

grants leave to file an Information, "if it appears that there is 

probable cause to believe that an offense has been committed by 

the defendant ." The State argues it need not demonstrate a prima 

facie case in the charging documents, only show probable cause to 

believe an offense has been committed. We a g r e e . S e c t i o n 

25-5-1041 MCA, prohibits the use or operation of slot machines. 

The State claims "High Country Keno" is a slot machine, the 

defendants claim it is not. There is no record to determine 

whether the machine is or is not a slot machine. However, the 

State has shown probable cause in its af f idavits that an offense 

has been committed and that is all that is necessary. We cannot 

determine whether the "High Country Keno" game is exactly the 

same as the "Raven Keno Game" declared legal in --- Treasure State 

Games for there are no findings in the record from which a deter- -- 

mination can be made. We hold the District Court's order 

dismissing Count I of the Information was in error. 

Next, we will address issues two and three together as they 

both challenge the dismissal of Count I1 of the Information. 

Count I1 charges defendants with "maintaining a bingo/keno game 

in which cards/chances may be purchased in excess of $ .5OrW in 

violation of section 23-5-412, MCA. In - Treasure P 

State -- Games, 

supra, and Gallatin County v. D & R Music and Vending (1982), 

Mont. , 654 P.2d 998, 39 St.Rep. 2197, this Court has 

ruled keno and electronic keno are legal under the Bingo and 

Raffles Act, section 25-5-401, et seq., MCA. Section 25-5-412, 
MCA, states: "The price for an individual bingo card shall not 

exceed 50 cents ." 

The District Court ordered Count I1 dismissed for the reason 

that the statute states an "individual" card may not exceed $.50 

yet the language in the Information is "cards/chances may be 

purchased in excess of $ .50." The District Court held the plurality of the language in the charge simply does not state an 

offense under section 23-5-412, MCA. The affidavit filed with 

the motion for leave to file Information states a bet of up to 

eight quarters can be made and "the more the bet, the higher the 

payoff ." Defendants claim the machine takes separate $ .25 bets 

which are cumulated for the purpose of increasing the odds in 

favor of the player. The State argues the bets are not separate 

but are actually one bet which exceeds the $ .50 limit. As stated 

above, an Information need only show "probable cause to believe 

an offense has been committed ." Again, this Court has no record 

from which we can determine the legality of the bets. We do find 

that the affidavit does show probable cause that an offense has 

been committed and dismissal of Count I1 of the Information was 

in error. 

Reversed and remanded to the District Court for further proceed ings . t 

We concur: 

a-Q6!~r/,dp 

Chief ~ustice~ 

Justices 
I respectfully dissent. 

The State here seeks to have the courts declare an 

electronic simulation of keno to be a slot machine and thus 

impose the sanctions found in sections 23-5-121 and 23-5-122. 

The latter two sections authorize seizure and confiscation of 

slot machines. These sanctions would authorize confiscation 

of keno machines if in fact they are slot machines being 

operated in violation of section 23-5-104, MCA. 

In Treasure State Games v. State of Montana (1976), 170 

Mont. 189, 551 P.2d 1008, this Court held that keno machines 

were electronic simulations of keno or bingo games and as 

such were legal. We did not determine whether cash payoffs 

could be made. However, keno is legal under the Bingo and 

Raffles Act, section 25-5-401, et seq., MCA, wherein cash 

prizes are not authorized. 

The issue becomes whether payment of cash prizes removes 

keno machines from the auspices of the Bingo and Raffles Act 

and converts an otherwise lawful keno machine to a slot 

machine. 

Business people have relied in good faith upon our 

decision in Treasure State and invested in keno machines 

believing that the electronic simulation of keno was 

authorized. Without ever previously ruling that cash payoffs 

were illegal, we now surprise these good faith investors with 

a ruling which allows confiscation of their investments. 

I would affirm the district court ruling that the State 

cannot prosecute violation of the Bingo and Raffles Act by 

permitting confiscation of these machines as slot machines. 
I agree completely with the dissent of Justice Morrison. 

', . --. ---==T=ss 

,A,' 

r" Justice 

ice