No. 12266 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

STATE OF MONTANA, Plaintiff and Respondent,

-VS

# - JOHNNIEFTILSON, 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:

# wovz4 1972 Filed:

## VOV2

### 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 sixteenthjudicial district, Custer County, Hon. A.B. 

### Martin, sittingwithout a jury. Defendant was found guilty of possession of gambling implements and sentenced to imprisonment inthe Custer County jail for a term

### of three months with the provision that upon payment of a fine inthe amount of $750, the term of imprisonment would be suspended, Defendant isthe owner-operator of the Western Vending Depot inMiles 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, allof which are described in the inventory of articles seized, Following the filingof charges inthe federal district court inBillings, 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 statedistrict court charging defendant with possession of gambling apparatus inviolation of section 94-2404, W.C.M. 

### 1947. On 

### the same day, defendant filed a motion toquash the Information, Hearing was held on December 21, 1971, and the motion denied. Defendant waived hisright totrialby jury and thereafter,

on March 23, 1972, defendant, his counsel, and the county attorney of Custer County filed a stipulationwith the district court inwhich defendant admitted hispersonal possession of the gambling equipment seized athiswarehouse. 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, sincehe only repairs and maintains these devices and does not distribute them inMontana, his possession

was lawful. Defendant stateshe 

### isregistered with the Attorney General of the United States and thathe repairs and sells gaming machines to out-of-state gambling operations, chiefly Nevada gaming clubs. He argues therewas no showing the machines were tobe used in violation of the laws of Montana and specifically section 94-2404, R.C.M, 1947, which states:

IIPossession of gambling implements prohibited. Any Derson who has inhispossession, orunder his conirol, orwho permits 

### tbbe placed, maintained orkept in any room, space, inclosure or building, owned, leased or occupied by him, or under hismanagement or control, any farobox, far0 layout, roulette wheel, roulette table, crap table, slotmachine, or any machine or apparatus of the kind mentioned inthe preceding section of this act, 

### ispunishable by a fine of not less than one hundred nor more than one thousand dollars, and may be imprisoned fornot less than three months nor more than one year in the discretion of the court; provided, however, that this section shallnot apply to

### a public officer, or to a person coming intopossession thereof in or by reason of the performance of an official duty, and holding the same tobe disposed of according to law,It Defendant argues thatpossession for use constitutes the violation of the law, as distinct frompossession 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 prohibitspossessi~n of gambling equipment.In Statev. Joyland Club, 124Mont, 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, orkeeps 

### any slotmachine, or other similar machine, or permits same tobe run or conducted, for money, checks, credits, or any representative of value, or for any property or thing whatever,' ispunishable 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 inhis possession, or under his control, orwho permits tobe placed, maintained or kept inany 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 inviolation of any of the provisions of the Act is a public nuisance. "It 

### is apparent from the provisions of section 

### 1of the 1-907Act that the le~islature intended toand that it 

# - made it the running or conducting of any slotmachine 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 slotmachines. Here the legislature dealt with two distinct offenses: One- the o~eration of the machines and devices described -?- in section 

### I, and the other, thepossession 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 Statev. Israel, 124 Mont. 152, 161, 220 P.2d 1003. In Statev. Engle, 124Mont. 175, 177, 220 P.2d 1015, affirming the conviction of illegallypossessing gambling equipment inviolation 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 tobe disposed of according to law. II' In Statev. Crown Cigar Store, 124Mont, 310, 316, 220 P.2d 1029, this Court held, ininterpreting section 94-2404, R.C.M. 1947, that it is unlawful topossess any type of gambling equipment unless the person 

### is a public officer, See also Statev, Read, 124 Mont, 184, 220 P.2d 1020. Accordingly, we find defendant's issue 

### 1tobe without merit,Defendant's issue 

### 2 seeks 

### a declaratoryjudgment to determine if the "Bonanza Machine" 

### is a gambling devtce. We note the district court specifically ignored the same question atthe hearing on defendant's motion to quash; for the same

1l reason, to-wit: Because no charge of possession of Bonanza machines was made,", we decline to discuss the issue. However, we note inregard todefendant'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 ina criminal action. Finding no error thejudgment of the district court 

### is affirmed

# .

Associate Justice



### 4 Chief Justice 

# / /

~ssociakd Justices.