State v. Humphries
| Decision Date | 30 June 1936 |
| Docket Number | 654. |
| Citation | 186 S.E. 473,210 N.C. 406 |
| Parties | STATE v. HUMPHRIES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cumberland County; Sinclair, Judge.
James Humphries was convicted for possessing a slot machine, and he appeals.
No error.
Criminal action tried upon indictment charging the defendant with possession of a slot machine in violation of chapter 282 Public Laws 1935.
The state's evidence tended to show that the defendant was in the possession of a machine or device adapted to be operated by the insertion of a coin in a slot. It was called a marble game or table. By placing a nickel coin in the slot, the user or operator was entitled to shoot five balls or marbles, one at a time, by means of a plunger atttached to a spring. This causes the balls to roll about over the table under a glass top. If the balls fall in certain designated holes, the player or operator receives "free games," or "if you hit the thing right, it will pay off in money," the amount ranging up to twenty nickels depending upon the combination of the holes into which the balls drop. "You are unable to predict in advance whether you will receive the same thing each time for a nickel-whether you will receive something or nothing."
The defendant offered to show in cross-examination of a state's witness the following:
Upon objection by the state this evidence was excluded and defendant excepted.
The machine was placed in evidence and operated before the court and jury. The element of chance or unpredictable outcome was demonstrated by such operation.
The defendant offered no evidence.
The court instructed the jury as follows:
"Gentlemen of the jury, the court directs that if you find beyond a reasonable doubt the facts in this case to be as testified by all the witnesses, you will return a verdict of guilty."
The jury returned a verdict of guilty, and from judgment thereon the defendant appealed.
A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.
Malcolm McQueen and Downing & Downing, all of Fayetteville, for appellant.
The bill of indictment sets out verbatim section 3 of chapter 282, Pub. Laws 1935, which defines an unlawful slot machine as follows:
"That any machine, apparatus or device is a slot machine or device prohibited by the provisions of this act if it is one that is adapted for use in such a way that, as a result of the insertion of any piece of money or coin or other object, such machine or device is caused to operate or may be operated, and by reason of any element of chance over which the operator cannot have any control over the outcome of the operation of such machine or device each and every time the same is operated, or to the operator the outcome of each separate operation of such machine or device is unpredictable in advance of each and every operation of such machine or device, may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value, except as herein permitted, which may be exchanged for any money, credit, or thing of value or allowance, or which may be given in trade or the user may secure additional chances or rights to use such machine, apparatus or device, irrespective of whether it may, apart from any element of chance over which the user may not have any control over the outcome of the operation or where the definite outcome of each separate operation of such machine or device is not predictable to the user in advance, or the outcome of such operation is not dependent in whole or in part upon skill and practice of the operator, also sell, deliver, or present some merchandise, indication, or weight, entertainment or other thing of value."
The above-quoted section, consisting of a single involved sentence, is somewhat confused, and presents some difficulty in interpretation. But under the maxim, "Ut res magis valeat quam pereat," it becomes the duty of the court by proper construction to determine and declare its meaning if that may be ascertained with reasonable clearness and certainty. The purpose of the statute is manifest. The General Assembly under its police power undertook to prohibit the possession and operation of certain slot machines which it declared were public nuisances. To the statutes already in force against lotteries and gambling devices, the General Assembly of 1931 added chapter 14 of the Public Laws of that session defining and prohibiting the keeping of slot machines, and by Pub.Laws 1935, c. 282, under which this defendant was indicted, the provisions of existing law against such devices were sought to be made comprehensive enough to include the possession of any kind of coin operated machine where by reason of any element of chance the outcome of its operation was unpredictable in advance.
The General Assembly of 1935 had previously enacted chapter 37, making the possession of a slot machine unlawful and defined such machine as follows:
Section 3. "That any machine, apparatus or device is a slot machine or device within the provisions of this act if it is one that is adapted, or may readily be converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object, such machine or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device; irrespective of whether it may, apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication or weight, entertainment or other thing of value."
The similarity of the provisions of the last-quoted section 3 to those of section 3 of chapter 282 is apparent. Corresponding sections of the later act merely added certain clauses parenthetically to the former. These two acts being in pari materia must be construed together. The former gives us light in the interpretation of the later. Castevens v. Stanly County, 209 N.C. 75, 183 S.E. 3. Section 3 of chapter 282, under which defendant was indicted, standing alone, is ungrammatical. It cannot be parsed. The predicate "may receive" in line 12 has no subject. But by reference to line 8, in section 3 of chapter 37, we see that the word "user" is the subject of the verb "may receive," and that in the later act this word was by error of the draftsman or the printer inadvertently omitted. It is the duty of the court to supply such an omission and to interpolate words manifestly omitted by clerical error. With the word "user" or "operator" inserted, the section has grammatical form and intelligible meaning to carry out the legislative intent.
The object of all interpretation is to determine the intent of the lawmaking body. Intent is the spirit which gives life to a legislative enactment. The heart of a statute is the intention of the lawmaking body. Branch Banking & Trust Co. v. Hood, 206 N.C. 268, 173 S.E. 601; State v. Earnhardt, 170 N.C. 725, 86 S.E. 960. In the language of Chancellor Kent: I Kent Com. 461.
Words may be interpolated when the meaning is plain and unmistakable. The language used in a statute must, if possible, be so construed as to give it some force and effect; and, consequently, when the language is elliptical, the words which are obviously necessary to complete the sense will be supplied. Black Int.Laws, p. 167; Loper v. State, 82 Minn. 71, 84 N.W. 650.
"In order to carry out the will of the Legislature expressed in an imperfect way, the courts will interpolate punctuation or words evidently intended to be used when the omission is plainly indicated and the statute as written is incongruous or unintelligible." 2 Lewis' Sutherland Stat. Cons., p. 737; Holmberg v. Jones, 7 Idaho, 752, 65 P. 563; Hutchings v. Commercial Bank, 91 Va. 68, 20 S.E. 950 (word "not" supplied).
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