NO. 82-272 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

THE STATE OF MONTANA, Plaintiff and Appellant,


### -vsSAM JOHNSON, CHRIS JOHNSON, PAT (DOE) HAP.IILTONAIJD ROBERT GRAHAM CLEF?!<C!:SI?::.-,':s- ,. , '.I'NT Defendants and Respond-ents. STWLc,: 

### c",,:~i.,iix

Appeal from: DistrictCourt of theFifthJudicial District, Inand fortheCounty 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 Respondentr Chester L. Jones, Virginia City, 14ontana

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Submitted: January 10, 1983 Decided: March 17, 1983

Filed: 

### p?!;rj 3,

## 2

## 983

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.
Defendants 

### were charged with the offenses of maintaining a bingo/keno game inwhich cards/chances may be purchased inexcess of $.SO in violation of section 23-5-412, MCA, and using, possessing, operating, keeping, and maintaining a 

### slotmachine 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 alldefendants. The Stateappeals. Defendant, RobertGraham, 

### 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 enlistedDillonpolice offi
### cers to investigate the Longbranch and The Blue Anchor af

### ter the sheriff received information that keno machines in Madison County 

### were paying cash rewards. Ateach 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 forapproximately fivehours. Apparently, themachines 

### 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 slotmachine, and Count 11; violationsof section 23-5-412, MCA, maintaining a bingo/keno game inwhich cards/chances may be purchased inexcess 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 alldefendants. In the order the District Court stated both counts 

### were dismissed for lack of probable cause. The Stateappeals from theDistrict Court's ruling. The issues raised on appeal areas follows: 1. Whether theDistrict Court erred indismissingCount I of the Information which charged defendants with the illegal possession of 

### a slot machine in violation of section 23-5-104, MCA, forlackof 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 violationof section23-5-412, MCA, forlackof probable cause. Count I of the Information charged defendants with the illegal possession of a slotmachine. 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 thereinby the player and from the play of which he obtains ormay obtainmoney, checks, chips, tokens, or Paper currency redeemable in money. Merchandise vending machines where the element of chance does not enter into theiroperation are not within the provisions of thispart." Section 23-5-104, MCA, states it shall be a misdemeanor to "use, possess, operate, keep, or maintain for use" any 

### slot machine. The affidavitsof probable cause filedwith the motions for leave 

### to file Information by the State 

### states investigating officers placed bets from one to eight quarters per game, intomachines labeled "High Country Keno

## ,"at establishments owned by defendants. Ateach 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 essentiallythe 

### same asthe "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, grantsleave to fileanInformation, "if it appears thatthere 

### is probable cause to believe that an offense has been committed by thedefendant

# ." The Stateargues it need not demonstrate a prima faciecase inthe charging documents, onlyshow 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 Statehas shown probable cause in its affidavits that an offense has been committed and that is allthat 

### 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 forthere 

### are no findings inthe record fromwhich a deter- -- mination can be made. We hold the District Court's order dismissingCount I of the Information

### was inerror. 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 $.5OrWin violation of section 23-5-412, MCA. In - Treasure State Games,

P

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

## , 654 P.2d 998, 39 St.Rep. 2197, thisCourt 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 inexcess 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 eightquarters 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 Stateargues the bets are not separate but 

### are actuallyone betwhich 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 fromwhich 

### we can determine the legalityof the bets. Wedo find that the affidavit does show probable cause that an offense has been committed and dismissal of Count I1 of the Information 

### was inerror. Reversed and remanded to the District Court for furtherproceedings

# . t

Weconcur: 

# a-Q6!~r/,dp Chief ~ustice~

JusticesI 

### respectfullydissent. 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 sectionsauthorize seizureand confiscationof slotmachines. These sanctionswould authorize confiscation of keno machines if in fact they are slot machines being operated inviolation of section 23-5-104,MCA. In Treasure State Gamesv. State of Montana (1976), 170 Mont. 189, 551 P.2d 1008, this Courtheld that kenomachines
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 issuebecomes whetherpayment of cashprizes removes keno machines from the auspices of the Bingo and RafflesAct 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. Iwould affirm the district court ruling that the State cannot prosecute violation of the Bingo and Raffles Act by permitting confiscation of these machines as slotmachines.I agree completely with the dissent of JusticeMorrison.



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