
    173 So. 91
    ONE PENNY MARBLE MACHINE v. STATE.
    6 Div. 86.
    Supreme Court of Alabama.
    Feb. 18, 1937.
    Rehearing Denied March 25, 1937.
    A. Berkowitz and Jas. L. Permutt, both of Birmingham, for appellant.
    A. A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen,, for the State.
   ANDERSON, Chief Justice.

The sole question to be determined by this appeal is whether or not the machine or device in question is outlawed by the statutes of this State.

The General Acts of 1931, Regular Session, p. 806, in defining the outlawed class by subdivision (d) of section 1, provides: “Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, which is operated or can be operated as a game of chance.” (Italics supplied.)

While this case was tried upon an agreed statement of facts and -while the facts fail to show that it was then being operated as a game of chance, it was open to the trial court to find that it could be so operated. Moreover, the agreed facts disclose that the machine was presented in open court and demonstrated to the trial court, thus giving the circuit court an ad-‘ vantage over this court in ascertaining that the machine could be operated as a game of chance and we can not therefore hold that the conclusion and decree of the trial court was contrary to the great weight of the evidence.

The decree of the circuit court Is affirmed.

Affirmed.

THOMAS, BROWN, and KNIGHT, JJ., concur. .  