No. 12266 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

STATE OF MONTANA, 

Plaint iff and Respondent, 

-VS - 

JOHNNIE FTILSON, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant : 

Joseph P. Hennessey argued, Billings, Montana. 

For Respondent : 

Hen. ~obert L. Woodahl, Attorney General, Helena, 

Montana. 

J. C. Weingartner, Deputy Attorney General, argued, 

Helena, Montana. 

William J. Krutzfeldt, County Attorney, Miles City, 

Montana. 

Submitted : October 17, 1972 

Decided : wovz 4 1972 

Filed : VOV 2 4 1971. 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered in the district 

court of the sixteenth judicial district, Custer County, Hon. 

A.B. Martin, sitting without a jury. Defendant was found guilty 

of possession of gambling implements and sentenced to imprisonment in the Custer County jail for a term of three months with 

the provision that upon payment of a fine in the amount of $750, 

the term of imprisonment would be suspended, 

Defendant is the owner-operator of the Western Vending 

Depot in Miles City, Montana. This business consists of distributing and maintaining coin operated machines, including pool 

tables and jukeboxes, On May 4, 1971, defendant's warehouse was 

raided by the Federal Bureau of Investigation. The raid yielded 

an extensive supply of gambling devices and apparatus including 

"slot machines", "uprights", "punchboards", "pull tabs", and 

miscellaneous components, all of which are described in the 

inventory of articles seized, 

Following the filing of charges in the federal district 

court in Billings, which are still pending, the federal authorities turned certain items of the gambling equipment over to the 

state authorities. On November 18, 1971, an Information was 

filed in the state district court charging defendant with possession 

of gambling apparatus in violation of section 94-2404, W.C.M. 1947. 

On the same day, defendant filed a motion to quash the Information, 

Hearing was held on December 21, 1971, and the motion denied. 

Defendant waived his right to trial by jury and thereafter, 

on March 23, 1972, defendant, his counsel, and the county attorney 

of Custer County filed a stipulation with the district court 

in which defendant admitted his personal possession of the gambling 

equipment seized at his warehouse. After hearing testimony from 

defendant, the district court found his guilty, 

Defendant presents two issues for this Court's review: 
1. Whether the court properly denied defendant's motion 

to quash and erred in finding defendant guilty of violating the 

provisions of section 94-2404, R.C.M. 1947? 

2. Whether defendant can ask this Court for a declaratory 

judgment to determine if the "Bonanza Machine" is a gambling 

device? 

Defendant maintains he was in sole possession of the seized 

gambling devices but, since he only repairs and maintains these 

devices and does not distribute them in Montana, his possession 

was lawful. Defendant states he is registered with the Attorney 

General of the United States and that he repairs and sells gaming 

machines to out-of-state gambling operations, chiefly Nevada 

gaming clubs. He argues there was no showing the machines were 

to be used in violation of the laws of Montana and specifically 

section 94-2404, R.C.M, 1947, which states: 

I I Possession of gambling implements prohibited. Any 

Derson who has in his possession, or under his conirol, or who permits tb be placed, maintained or kept 

in any room, space, inclosure or building, owned, 

leased or occupied by him, or under his management 

or control, any faro box, far0 layout, roulette wheel, 

roulette table, crap table, slot machine, or any 

machine or apparatus of the kind mentioned in the 

preceding section of this act, is punishable by a 

fine of not less than one hundred nor more than one 

thousand dollars, and may be imprisoned for not less 

than three months nor more than one year in the discretion of the court; provided, however, that this 

section shall not apply to a public officer, or to a 

person coming into possession thereof in or by reason 

of the performance of an official duty, and holding the 

same to be disposed of according to law, It 

Defendant argues that possession for use constitutes the 

violation of the law, as distinct from possession alone, which 

defendant had in openly rebuilding and manufacturing gaming 

devices for shipment to the state of Nevada, where they are legal. 

This Court has held on many occasions, under section 94-2404, 

K.C.M. 1947, that mere possession of gambling equipment is illegal. 

We note here that section 94-2401, R.C.M, 1947, prohibits using 

gambling equipment; section 94-2404 prohibits possessi~n of 

gambling equipment. 
In State v. Joyland Club, 124 Mont, 122, 134, 220 P,2d 988, 

this Court noted the distinction between section 94-2401 and section 

"In 1907 the legislature enacted Chapter 115, Session 

Laws of 1907, section 1 [now 94-24011 whereof provides 

that any person who 'runs or conducts, or keeps any 

slot machine, or other similar machine, or permits same 

to be run or conducted, for money, checks, credits, or 

any representative of value, or for any property or 

thing whatever,' is punishable by fine or imprisonment 

as therein prescribed. Section 2 of the 1907 Act [now 

94-24041 additionally and separately prescribes punishment for 'Any person who has in his possession, or under 

his control, or who permits to be placed, maintained or 

kept in any room, space, enclosure or building, owned, 

leased or occupied by him, or under his management or 

control, any * * * slot machine * * *,' Section 7 of the 

I907 Act provides that any article, machine or apparatus 

maintained or kept in violation of any of the provisions 

of the Act is a public nuisance. 

"It is apparent from the provisions of section 1 of the 

1-907 Act that the le~islature - intended to and that it 

made it the running or conducting of any slot machine or 

similar device a separate offense, as distinguished from 

the mere possession or maintenance of such machines or 

similar devices. Section 2 of the Act prescribed punishment for any person who has possession,~control or-who 

maintains the outlawed devices, including slot machines. 

Here the legislature dealt with two distinct offenses: 

One- the o~eration of the machines and devices described -?- 

in section I, and the other, the possession and maintenance 

of the machines and devices described in section 2. See 

sections 8416 to 8436, R.C.M, 1907, inclusive." (Emphasis 

theirs), 

This Court reactr'khe same result in State v. Israel, 124 

Mont. 152, 161, 220 P.2d 1003. 

In State v. Engle, 124 Mont. 175, 177, 220 P.2d 1015, 

affirming the conviction of illegally possessing gambling equipment in violation of section 94-2404, we said: 

"Under this law no one may lawfully possess any slot 

machine in this state other than 'a public officer, 

or * ** a person coming into possession thereof in 

or by reason of the performance of an official duty 

and holding the same to be disposed of according to 

law. I I' 

In State v. Crown Cigar Store, 124 Mont, 310, 316, 220 P.2d 

1029, this Court held, in interpreting section 94-2404, R.C.M. 

1947, that it is unlawful to possess any type of gambling equipment unless the person is a public officer, See also State v, 

Read, 124 Mont, 184, 220 P.2d 1020. 

Accordingly, we find defendant's issue 1 to be without 

merit, 
Defendant's issue 2 seeks a declaratory judgment to 

determine if the "Bonanza Machine" is a gambling devtce. We 

note the district court specifically ignored the same question 

at the hearing on defendant's motion to quash; for the same 

1 l reason, to-wit: Because no charge of possession of Bonanza 

machines was made,", we decline to discuss the issue. 

However, we note in regard to defendant's request for a 

civil remedy in a criminal proceeding, that in Goff v, State, 

141. Mont. 605, 374 P.2d 862, where the petitioner sought to 

invoke the Uniform Declaratory Judgments Act, sections 93-8901 

through 93-8916, R.C.M. 1947, this Court held that Act could 

not be applied in a criminal action. 

Finding no error the judgment of the district court is 

affirmed . 

Associate Justice 

4 Chief Justice / / 

~ssociakd Justices.