#### FRED M. NIVENS v. ELLIS R. JUSTICE, Trading as JUSTICE SILVER DIME.

(Filed 15 June, 1936.)

Gaming A a—

Where the agreed statement of facts in an action to recover the penalty under C. S., 4434, states that defendant kept a slot machine in his store, without a finding that the machine was illegal, the findings are insufficient to support a judgment against defendant.

Appeal by defendant from Harding, J., at February Term, 1936, of MecKLENBusg.

Reversed.

Action to recover of defendant tbe penalty of $200.00 prescribed by C. S., 4434, for keeping in bis store and place of business an illegal slot machine, heard by the court below on an agreed statement of facts.

From judgment in favor of plaintiff, defendant appealed.

Hiram, P. Whitacre and H. C. Williams for plaintiff.

Kirkpatrick & Kirkpatrick for defendant.

Per Curiam.

The statute, C. S., 4434, provides: “If any person shall knowingly suffer to be opened, left, or used in his house or on any part of the premises occupied therewith, any of the gaming tables by this article prohibited, or any illegal punchboard or illegal slot machine, he shall forfeit and pay to anyone who will sue therefor two hundred dollars.”

The facts material to the decision of the controversy as set out in the agreed statement of facts are as follows:

> “2. That the defendant is in the business of owning and operating a store wherein various soft drinks, beer, and food are sold, and a hotel on the floor above wherein he lives.

> “3. That on 6 May, 1935, a slot machine was located and being operated in the defendant’s place of business.”

The facts agreed are insufficient to warrant the judgment. The statute authorizes penalty suit for keeping an illegal slot machine. In the agreed statement of facts the offending article is defined merely as a “slot machine.” There is no description of its method of operation nor finding that it is illegal.

The judgment must be

Reversed.