§712-1226  Possession of a gambling device. 
(1)  A person commits the offense of possession of a gambling device if the
person manufactures, sells, transports, places, possesses, or conducts or
negotiates any transaction affecting or designed to affect ownership, custody,
or use of any gambling device, knowing it is to be used in the advancement of
gambling activity which is not social gambling.



(2)  Possession of a gambling device is a
misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; gen ch 1993]



 



COMMENTARY ON §§712-1224 TO 1226



 



  These sections enlarge the scope of the previous law by
adding inchoate gambling offenses involving the possession of gambling records
or devices, thus permitting police intervention at the anticipatory stage of
gambling.  The sections also complement and bolster the coverage of §§712-1221,
1222, and 1223.



  Sections 712-1224 and 1225 concern the possession of gambling
records.  These records may consist of any writing, paper, instrument, or
article of a kind "commonly used" in a bookmaking, lottery, or mutuel
scheme.  The gradation of penalties into a class C felony and a misdemeanor is
made on the same basis as the gradation of penalties for promoting gambling
activities (§§712-1221 and 1222).



  Section 712-1226 makes it a misdemeanor to manufacture, sell,
transport, or possess a gambling device, knowing it is to be used in the
advancement of gambling activity which is not social gambling.  The term
"gambling device" is defined by §712-1220(5).  The definition
specifically excludes from its scope lottery tickets to avoid needless
overlapping of §§712-1224 and 1225 with §712-1226.



  These sections are needed and justifiable for two reasons. 
First, because of the nature of gambling offenses, the State often cannot prove
the actual promotion of gambling activity while at the same time it can easily
prove the culpable possession of gambling records or devices.  In view of the
defense afforded by §712-1227, possession of gambling records and devices
provides a legitimate basis for permitting police intervention and imposing
penal liability.  Secondly, by allowing the State to prosecute for possession
of records or devices, society is able to restrict unlawful gambling activity
while it is in its preparatory stage.  Especially is this so when the
definition of the possessory offense relating to gambling devices is drawn so
as to cover trafficking in the devices.



  The coverage of the previous statutory law is sketchy in
regard to the possession of gambling records or devices.  A person found in
possession of a lottery ticket was guilty of a misdemeanor.[1]  There was no
express provision penalizing possession of bookmaking records or receipts or
gambling devices.  The Code fills this gap and provides a basis for earlier
police intervention.



  The existing case law holds that operating a pinball machine
that gives free games upon the scoring of a certain amount of points is a form
of gambling.[2]  The Proposed Draft of the Code, as well as the Code when
adopted in 1972, accepted this position.  Originally, "gambling"
turned on the possibility of receiving something of value.[3]  "Something
of value" included "a privilege of playing at a game or scheme
without charge."  Thus, possession of a pinball machine originally came
within the scope of §712-1225.  However, by Act 201, Session Laws 1973, the
Legislature amended the definition of "something of value" by
removing the phrase "or a privilege of playing at a game or scheme without
charge."  (See §712-1220(11), and Commentary thereon.)  In commenting on
the amendment, the Senate Committee on Judiciary, in Standing Committee Report
No. 806 (1973) stated:



"This
phrase refers to such activities as pinball and other games involving the
winning of a privilege of playing another game without charge.  Such winnings
were previously allowed under Hawaii law.  Your Committee finds that there is
no good reason to include 'free game' as something of value from
gambling."



  These three sections were originally numbered as §§712-1223,
1224 and 1225 in the Code when adopted in 1972.  They were renumbered by Act
201, Session Laws 1973.  Act 201 also made the following changes to these
sections.  In §§712-1224 and 1225, the phrase "other than as a
player" was deleted, so that even a person who is a player may be subject
to the offense of possession of gambling records.  Also, in §712-1224, the
clause "and constituting, reflecting, or representing more than 500 plays
or chances therein" was inserted to describe the type of records of lottery
or mutuel scheme that is necessary for the offense of possession of gambling
records in the first degree.



 



SUPPLEMENTAL COMMENTARY ON §§712-1224 TO 1226



 



  Act 174, Session Laws 1980, amended §712-1224 by expanding
the offense to include persons who produce or distribute gambling records and
by clarifying the definition and monetary amounts of such records.  The purpose
was to provide for more effective enforcement and to curb the number of pool
tickets for extremely high amounts.  Senate Standing Committee Report No.
857-80, House Standing Committee Report No. 492-80.



 



__________



§§712-1224 To 1226 Commentary:



 



1.  H.R.S. §746-3.



 



2.  Territory of Hawaii v. Uyehara, 42 Haw. 184 (1957);
Territory of Hawaii v. Naumu, 43 Haw. 66 (1958).



 



3.  §712-1220(4).