Gayer

This is an appeal from a judgment ordering the return to plaintiff of fourteen pin ball machines which defendant, in his capacity as District Attorney of San Diego County, had seized and proposed to destroy under the provisions of section 335a of the Penal Code.

The parties agree that the findings are supported by the evidence and fairly present the issue raised on this appeal. Therefore we will look to the findings for a brief summary of the facts.

Plaintiff owned fourteen pin ball machines which were placed in various business houses in the city of Escondido for operation by the public. On October 29, 1941, defendant in his capacity as District Attorney of San Diego County, seized them as lottery or gambling devices and gave notice of his intention to destroy them summarily. Plaintiff brought this action to recover their possession and was given judgment. The trial court found:

Defendant maintains that the foregoing findings do not support the judgment for the reason that the free games that could be won on the machines represented such an award of value that it brought their operation within the statutes prohibiting lotteries and gambling on such devices. This is the sole…