The impact of the Criminal Rules

On December 15, 2016, the Supreme Court approved the Mississippi Rules of Criminal Procedure.  They go into effect July 1, 2017.  The Rules can be found HERE.

I have long argued that we need to reduce the number of Rules.  The Supreme Court is looking at how the Criminal Rules affect other Rules.  Clearly, the Criminal Rules will impact the Uniform Rules of Circuit and County Court Practice, the Uniform Rules of Justice Court and the Uniform Rules of Youth Court.

The easy thing for the Supreme Court to do is just do a little surgery on the current Rules in place.  I think it would be a great opportunity to ease the burden on the Bar if we would consolidate some of the Rules — at least the Circuit and Chancery Court Rules. There is simply no reason we cannot reduce the number of rules and make sure all rules are consistent.

This is your opportunity.  If you don’t like the volume of Rules, I encourage the members of the Bar to be vocal about this.  If you don’t, you won’t see any change for the next 20 years.

Maybe this isn’t a problem for lawyers.  I’m interested in your comments and welcome your thoughts about how the Rules could be made more efficient and effective.
 

Please feel free to comment.

Partisan Judicial Elections?

You may be aware that a bill was filed to make judicial elections partisan again.  It was tabled by the Committee chair, so my understanding is that the bill is dead.

Sid Salter wrote an excellent article titled “Reality is judicial races are partisan.”

Sid’s article is correct, in my opinion.  The biggest problem in judicial elections is that our statutes and Code of Judicial Conduct have not kept up with U. S. Supreme Court and other federal court decisions holding similar statutes and judicial code of conduct provisions unconstitutional.

Our next judicial election is in 2018.  I urge the Legislature and the Supreme Court to get our statutes and Code of Judicial in order.

“A Pee-wee lawsuit”

Here is a really old case about what is a slot machine.  You might want to read Justice Ethridge’s dissent.

Crippen v. Mint Sales, Co., 139 Miss. 87 (1925).

HOLDEN, J.
The appellee, Mint Sales Company, sued out an injunction against the appellant, Crippen, sheriff of Leflore county, to restrain him from interfering with the operation of certain vending machines, commonly known as slot machines, in Leflore county. The cause came on for hearing on bill, answer, motion to dissolve, and proof before the chancellor, and a decree was entered sustaining the bill and making the injunction perpetual, and the sheriff appeals.

The controversy presented for our decision is whether or not the vending machine involved in this case is such a device as is prohibited by chapter 339, Laws of 1924, or whether the machine comes within the exception specified in the act and is deemed lawful and legalized by the language in the latter part of the statute. It being contended by the appellant that the character of machine here involved does not come within the protection of the statute, and the appellee contending that the exception in the statute specifically covers the operation of the machine.

In order to first understand the statute invoked, we shall here set out chapter 339, Laws of 1924, which is as follows:

“It shall be unlawful for any person or persons, firms, copartnership or corporations, to operate any cane rack, knife rack, artful dodger, punch board, roll down, merchandise wheel, or slot machine, or similar devices. Any person or persons found guilty of a violation of this section shall be deemed guilty of a misdemean or and fined in any sum not exceeding $500 or imprisonment for not exceeding three months. Provided, however, that this act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine.”

It will be observed the act makes it unlawful for any person to operate any “slot machine, or similar device.” Then it provides further “that this act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine.”

The appellant urges that the provision last quoted was intended to cover “vending machines” such as cup machines, gum machines, or stamp machines, where the player would receive the value of his money on each operation of the machine, and would know in advance exactly what he would get each and every time he put his coin into the machine; that the act was not intended to protect a gambling device or a machine which afforded elements of chance as to the amount and value of the thing to be received on any single operation of the machine.

The appellee contends the machine is lawful because the player can see in advance what he will get on each operation of the machine, and is therefore not a gambling device; but that whether it be a gambling device or not, the statute specifically authorizes the operation of the machine involved in this case.

There is an agreed statement of facts in the record as to what the machine is and how operated. We here quote the agreed statement of facts, which is as follows:
“It is hereby agreed between counsel for complainant and defendant that, by placing a nickle or a trade check in the slot and pulling the lever, it is possible for this mint machine to pay off as many as 2, 4, 8, 12, 16, and 20 trade checks, and it will pay off, in addition to a package of mints from each operation of said mint machine either 2 trade checks, 4 trade checks, 8 trade checks, 12 trade checks, 16 *504 trade checks, or 20 trade checks, all of said trade checks being good for 5 cents worth of merchandise in the store in which the machine is located and that the number of checks which the party playing the machine will receive on each play are indicated in the window in advance of each operation of the machine, and that on each operation a package of mints is indicated and will be paid whether operated by a trade check or a coin.”
The agreed statement of facts, together with the other proof in the case, shows, according to our view, that the vending machine in question is very much like the ordinary slot machine operated in this state some years ago, except that it is operated is a somewhat different manner from the old slot machine.

We shall attempt to state the exact method of operation of the machine, so the question presented may be better understood. The machine gives out on each operation a package of mints, of very small value, and the player may also receive as many as 20 trade checks, worth about $1 in trade, or he may receive nothing except the mints on any single operation of the machine. Before the player places a nickle or trade check in the slot and pulls the lever, the machine indicates what the player will receive when he operates it. The indicator will show what the player is to get on the first operation of the machine, but it does not inform him, in advance of the first play, what he will get on the second operation of the machine. The player has the right to play the machine as many times as he desires. He cannot tell what he is going to receive on the second operation until he has paid for and operated it the first time. He knew what he would get the first time, but he did not know then what he would get on the second play. The indicator may point to nothing on the first operation and point to 20 checks on the second operation; the player having the right to operate the machine as long as he wishes.

It is our conclusion that the vending machine here involved is a gambling device, “a slot machine or similar device.” It is plain to us that the element of chance involved is in the second operation of the machine, which may give to the player a large return or a small one for his money.

But whether or not it is a gambling device is immaterial, in our judgment, because we think the legislative act by its language prohibits the kind of vending machine involved in this case, as it was not the legislative intent to legalize such a device, but the statute was meant to cover the ordinary vending machines where the player would know what he was to receive each and every time before he put his money into the slot, such as the stamp and gum machines.

The provision of the statute that the act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive “on each operation” of the machine, does not apply to the kind of machine here in question, because it does not indicate in advance what the purchaser, in the whole purchase, is to receive “on each operation of the machine.” It is true the player can see in advance what he will get on the first operation, but not on the second. Each play by the player at the machine may consist of many operations by pulling the lever, but the player engages in the element of chance as to what the indicator will show on the second or next operation because he does not then know what it will indicate on the second pull when he pulls the lever the first time. Therefore, taking the play as a whole, the machine does not indicate in advance what the player will get on each and all operations of the machine, and it is not the kind of vending machine that the Legislature intended to exempt in the statute.

We do not think the Legislature intended to legalize the device here involved. We cannot see our way clear to hold that the Legislature meant to pass an act legalizing and granting a monopoly to this character of gambling device while prohibiting all others of a similar nature. The record in the case indicates, and for that matter this court knows, from common knowledge, that the character of gambling device here involved is an insidious evil. It attracts the youth, gets their money, and educates them in the gambling spirit.

In view of these conclusions we think it is unlawful to operate the machine, and the decree of the chancellor should be reversed, and the bill dismissed.

Reversed and bill dismissed.

ETHRIDGE, J. (dissenting).

I am impelled to dissent in this case, not because of the importance of the subject–matter in controversy, for the subject–matter is a very trivial affair in my view, a veritable “tempest in a teapot,” a “much ado about nothing,” a peewee lawsuit. However the principle of the decision is more important and, as I see it, is a plain refusal to construe the law as written by its plain language, but in effect, though not in name, a reformation of the statute.

I want to say at the outset that what I say in this opinion is not intended as a reflection on the judges who disagree with me. I have lived too long in the polemical atmosphere of the law not to know that wise men differ honestly—that what appears to one man to be a certainty, by another is regarded as its exact opposite.

The concluding provision of chapter 339, Laws of 1924:“Provided, however, that this act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine,” *505 —means to except from the statute a machine which indicates what the purchaser is to receive in advance each time he places a coin in the aperture. It does not mean and could not mean that the machine must indicate in advance all of the operations of the machine, because no person knows how many times any operator might operate it. It would be as impossible for human intelligence to know this, not knowing how many times a player was going to play, as the habit of the Eastern despots in ancient times to dream a dream and forget, and demand of the soothsayer that he tell him the dream first and then what it meant. Nothing short of divine revelation could foretell those things.

As used in the statute the word “each” refers to the several operations and not to the aggregate operations. All that is required or could be required logically would be for the player to see before placing his coin in the aperture what he would get for his coin on that particular operation, and that is exactly what the machine here involved does. If the player will only get mints for his money, that is indicated. If he would get mints plus a trade check, that is indicated before he puts his money in. In no case is there the slightest element of chance in his getting anything other than what is indicated by the machine. He knows precisely what he is going to get before he places his money and there is not any possibility of his being deceived thereby. As to how such a machine could be construed to be a gambling appliance is beyond my comprehension. That it was the intention of the Legislature to legalize machines of this class is clear, not only from chapter 339, Laws of 1924, itself, but also from chapter 120, Laws of 1924, which imposes a privilege tax upon various kinds of vending machines including the kind here involved. Whether the Legislature acted wisely or unwisely in passing this statute and in making the exception is no concern whatever of the courts. The Legislature is intrusted with all the law–making power of the state—it is the exclusive custodian of that power. People have the right through their lawful representatives to make any law they desire so long as it is not prohibited by the state and federal Constitutions. It is the very essence of free government that the separation of the powers of government should be maintained. The court is limited in its powers to disregard statutes to the question as to whether or not they are constitutional. It has no kind of power to control the Legislature in shaping the public policy of the state. It cannot review or set aside the law because it may be unwise, unjust, or oppressive, or for any other consideration of that nature. The court’s inquiry is solely as to whether the statute is constitutional, and if constitutional it must be enforced. The Legislature clearly had power to enact the law. At common law it is not an offense to gamble, even if this machine should be classed as a gambling machine, which it is not.
The Legislature has power to prohibit gambling or to permit it, and if it does a foolish thing or an unwise thing, the remedy is not in the courts but at the ballot box. Ex parte Pierotti, 43 Nev. 243, 184 P. 209, and authorities cited therein; Decennial Digest, First and Second Series, title “Constitutional Law,”
70 (3); 10 Cent. Dig. “Constitutional Law,” § 131; Koch v. Bridges, 45 Miss, 247; Powell v. Smith, 74 Miss. 142, 20 So. 872; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L. R. A. (N. S.) 340; Yerger v. State, 91 Miss. 802, 45 So. 849; Hamner v. State, 100 Miss. 349, 56 So. 466; Abbott v. State, 106 Miss. 340, 63 So. 667.

Courts of equity have jurisdiction to reform a contract, but have no jurisdiction to reform a statute, and as a rose would smell as sweet by any other name, so the essence of the proceeding to reform is not changed by calling it construction or interpretation.

Independent of jurisdiction it would be a dangerous undertaking for the court, if it had the power to undertake the job of correcting legislative mistakes and follies, for there is much in the statutes of the past dozen years evidencing midget minded statesmen and much of folly. Still I am not disposed to be hard on the Legislature. Taken as a whole it does good work and eliminates many unwise measures. There are men in the Legislature who could fill any station in the government with credit, and the majority would class as “average and better.” But there are usually some 35 per cent. to 40 per cent. of the membership whose only excuse for being sent to the Legislature is to keep them out of the race for constables and justices of the peace. These men have votes and have to be reckoned with by the wise ones in shaping the legislation of the session. If you antagonize their bills they strike back. They are strong on midget legislation and when they introduce a bill to place jay birds under peace bonds, or to muzzle seed ticks, or to prohibit vending machines in stores, the wise ones will vote with them for the sake of more important measures coming on. None of these pigmy statesmen go after large questions and undertake their solution, they attack small tasks. They are strong on moral questions or something that sounds well which they can take back home to their people for home consumption in future politics. They go around with a spiritual microscope searching for the germs of evils in trifles, while utterly ignoring the mountains of iniquity which stand out in plain view in the nearby landscape. Instead of making war on the beasts and birds of prey that menace society they hunt for earth worms. Conscious of their inability to deal *506 with large matters they make a record from trifles garbed in high sounding phrases.

The importance of recognizing the right of the people to have the laws made by the law–making department, even though sometimes that department may act unwisely, is too essential to the perpetuity of free institutions to permit the court, being in a separate department of the government with separate powers, to cross the proper limits for the purpose of undertaking to change the logical results expressed in legislation.

Those who hold judicial power and exercise the function of judging men’s rights under the law should perform their duty unshrinkingly and unmindful of public opinion or popular clamor. However, when this public opinion is crystallized into law, the courts should recognize it and give effect to it, but so long as it is not crystallized into law it should have no influence in administering the law. It is the very essence of liberty and justice that rights be measured and enforced by certain standards and uniform rules. A judge must adhere to the law. He cannot rightfully make law or change law. The law should be a rule of conduct for all from the highest to the lowest. It should not be perverted even to attain a good temporary purpose. It will always happen that some wrong will be found to exist under any general rule. The human race is not perfect. They cannot declare any general rule that may not sometimes shield wrong. As long as some men are wiser than others, and as long as selfishness and greed shape the affairs of men, particular cases will arise making a departure from fixed principles seemingly desirable. It will be found, however, that adhering to the fixed principle is better, and that less injustice will result from that course in the long run. Mistakes in statutes can be corrected by the appropriate department of the government before very great mischief results, and the Legislature should be looked to to make the change and not the courts.

ANDERSON, J. (dissenting).

I dissent from the majority opinion. In the first place, in my opinion, the vending machine in question is not a gaming device. The games outlawed by our statutes are such as are determined by lot or mere luck, in which hazard entirely predominates. 27 C. J. 968.

The agreed facts in this case show beyond controversy, it seems to me, that the operation of this vending machine is not gaming within that definition. The result of each operation is not brought about by mere luck or hazard. Every time the person operating the machine pulls the lever he knows in advance what he is going to get. How it can be said that such an operation is one of entire hazard or luck I am unable to understand.

It may be conceded, however, that the machine is a gaming device, nevertheless under the proviso of chapter 339, Laws of 1924, its use and operation was expressly excepted from our gaming statutes. That proviso is in this language:

“Provided, however, that this act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine.”
How this machine could be better described I am unable to see. By this proviso to the statute the Legislature simply put its finger on this identical machine and said, so far as the use and operation of this machine is concerned, it shall not constitute the crime of gaming. The majority opinion is squarely in the face of the proviso. It says that the Legislature meant one thing, while the Legislature itself in plain language said it meant the converse. The statute is not open to construction. It means what it says in plain words. The majority opinion says it means something else.