2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 2 - Gambling and Related Offenses
Part 1 - Gambling
§ 16-12-24. Possession, Manufacture, or Transfer of Gambling Device or Parts; Possession of Antique Slot Machines

1. A person who knowingly owns, manufactures, transfers commercially, or possesses any device which he knows is designed for gambling purposes or anything which he knows is designed as a subassembly or essential part of such device is guilty of a misdemeanor of a high and aggravated nature.
2. 1. As used in this subsection, the term:
      1. "Antique slot machine" means a coin operated, nonelectronic mechanical gambling device that pays off according to the matching of symbols on wheels spun by a handle and was manufactured in its entirety, except for identical replacement parts, prior to January 1, 1950.
      2. "Conviction" includes a plea of nolo contendere to a felony.
   2. It shall be a defense to any action or prosecution under this Code section for possession of a gambling device that the device is an antique slot machine and that said device was not being used for gambling; provided, however, the defense shall not be available to any person who has been convicted of a felony in this or any other state or under federal law and provided, further, that this defense shall not be available if the antique slot machine is on the premises of a private or public club or in an establishment where alcoholic beverages are sold.
   3. Any antique slot machine seized as a result of a violation of this Code section shall be contraband and subject to seizure and destruction as provided in Code Section 16-12-32. An antique slot machine seized for a violation of this Code section shall not be destroyed, altered, or sold until the owner has been afforded a reasonable opportunity to present evidence that the device was not operated for unlawful gambling or in violation of this Code section. If the court determines that the device is an antique slot machine and was not operated or possessed in violation of this or any other Code section, such device shall be returned to its owner.

(Code 1933, § 26-2707, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, §§ 1, 2; Ga. L. 1970, p. 236, § 9; Ga. L. 1985, p. 888, § 1; Ga. L. 2015, p. 693, § 2-12/HB 233.)

- Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B.J. 124 (1970).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 26-6502, as it read prior to revision of the title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.

- Although arising from the same transaction, offenses of possession of gambling devices and equipment, and commercial gambling by operating a gambling place, are separate and distinct. Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578, cert. denied, 423 U.S. 895, 96 S. Ct. 194, 46 L. Ed. 2d 127 (1975).

- An apparatus, known as a "slot machine," by which a person depositing money therein may, by chance, get directly or indirectly money or articles of value worth either more or less than the money deposited, falls within the purview of former Code 1933, § 26-6502, and cannot be treated as one kept only for amusement. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942) (decided under former Code 1933, § 26-6502).

- Mere keeping of device for hazarding of money being prohibited by law, and a device so kept being contraband, it is unnecessary in showing illegality of the device, to allege and prove a further violation of law by its actual operation. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942) (decided under former Code 1933, § 26-6502).

Mere keeping of a device for hazarding of money being prohibited by law, and a device so kept being contraband, it is unnecessary, in showing illegality of the device, to allege and prove a further violation of law by its actual operation. Miller v. State, 94 Ga. App. 259, 94 S.E.2d 120 (1956) (decided under former Code 1933, § 26-6502).

Search warrant was based on probable cause because Clayton County investigators purchased an illegal video poker machine from a subject in Clayton County, who said that the machine was obtained from a particular address in DeKalb County, and both DeKalb and Clayton investigators observed "several other illegal video poker machines" at that address; while the investigators could not tell from looking at the machines whether the machines were legal or not, the test was only whether the evidence established a fair probability that contraband would be found. Jones v. State, 276 Ga. App. 810, 625 S.E.2d 4 (2005).

- When a sheriff finds articles kept for the purpose of gambling, an action of trover by the owner against the sheriff for their recovery will not lie, since courts are created for the upholding of law and of morals, and will decline to allow their processes to be used to further maintenance of crimes and public evils, by assisting or protecting such an owner in recovering the implements of crime or illegal paraphernalia. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942) (decided under former Code 1933, § 26-6502).

- Evidence was insufficient to support the defendant's convictions of commercial gambling, possession of a gambling device, and keeping a gambling place because the seized machines were coin operated amusement machines (COAMs), as there was no evidence that the defendant tampered with the COAMs or otherwise did anything to remove the element of player skill and the state's evidence at most showed that the COAMs malfunctioned in some way to allow the police officer to win without nudging the wheels. Bartlett v. State, 351 Ga. App. 476, 829 S.E.2d 187 (2019), cert. denied, No. S20C0008, 2020 Ga. LEXIS 254 (Ga. 2020).

Cited in Osbourne v. State, 128 Ga. App. 81, 195 S.E.2d 662 (1973); United States v. Hawes, 529 F.2d 472 (5th Cir. 1976); Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 26-6502 are included in the annotations for this Code section.

- The 1992 amendments to the Johnson Act (15 U.S.C. § 1175) have preempted O.C.G.A. § 16-12-24's prohibition on the possession of gambling devices as applied to foreign or U.S. registered vessels where all gambling activities take place beyond the state's three-mile territorial limits, where the gambling devices remain on board when the vessel is in a Georgia port. 1992 Op. Att'y Gen. No. U92-20.

Electronic slot machines are gambling devices per se; they are contraband; they can be seized and destroyed as contraband; possession of such devices is a crime; no demonstration of operation of any such device is necessary antecedent to its seizure, nor is any demonstration necessary to establish basis of criminal prosecution for possession of said device. 1971 Op. Att'y Gen. No. 71-167.

Electronic games that are entirely games of chance are gambling devices per se. Electronic games which are not games of skill, and which are worthless except as games of chance, are gambling devices per se, and ownership, manufacture, transfer commercially, or possession of such devices within this state is prohibited. 1970 Op. Att'y Gen. No. U70-202.

RESEARCH REFERENCES

Am. Jur. 2d.

- 38 Am. Jur. 2d, Gambling, § 64 et seq.

- 38 C.J.S., Gaming, §§ 155, 156.

- Coin-operated or slot machines as lottery, 101 A.L.R. 1126.

Possession of gambling device as offense not requiring showing that device was used for gambling or kept for gambling purposes, 162 A.L.R. 1188.

Punchboard as a lottery, 163 A.L.R. 1279.

Paraphernalia or appliances used for recording gambling transactions or receiving or furnishing gambling information as gaming "devices" within criminal statute or ordinance, 1 A.L.R.3d 726.

Validity of criminal legislation making possession of gambling or lottery devices or paraphernalia presumptive or prima facie evidence of other incriminating facts, 17 A.L.R.3d 491.

Construction and application of state or municipal enactments relating to policy or numbers games, 70 A.L.R.3d 897.