Opinion
No. 858
Decided May 3, 1943.
Gambling device — Pinball machine — Search and seizure — Replevin.
A pinball machine is not per se a gambling device.
APPEAL: Court of Appeals for Butler county.
Messrs. Wonnell Brown, for appellant.
Messrs. Millikin, Shotts Reister, for appellee.
This is an action in replevin to recover possession of a pinball machine. In the petition, the defendant is described as the chief of police of Hamilton, and it is alleged that, while acting in that capacity, he seized the pinball machine and has ever since detained it from the plaintiff. It is also alleged that the machine was licensed by the United States of America.
The defendant's answer was limited to a denial that he wrongfully detained the machine from the plaintiff.
The evidence was limited to a description of the machine for the purpose, apparently, of proving that it was not a gambling device. The evidence proved that it was not such a device and the defendant testified that he had never seen it used as such.
The trial court found for the defendant on the theory that a pinball machine was a gambling device per se.
We have been cited to no ordinance or statute declaring that a pinball machine is a gambling device; that it is easily converted into one; or that it is a nuisance or otherwise outlawed and subject to seizure and destruction by public officials.
The cases relied upon by the defendant are cases in which the device by reason of its construction or the use to which it had been put had been brought within the descriptive provisions of a statute or ordinance declaring such devices contraband and authorizing their destruction. Such cases do not apply here.
The right to possession follows ownership of all property capable of ownership. The record contains nothing to indicate that this machine is not a proper object of ownership.
The judgment is reversed and the cause remanded with instructions to enter judgment for the plaintiff.
Judgment reversed.
ROSS, P.J., HILDEBRANT and MATTHEWS, JJ., concur.