Com. v. Alleged Gaming Apparatus and Implements and Money

• Decision Date: 07 January 1957
• Citation: 335 Mass. 223,139 N.E.2d 715
• Parties: COMMONWEALTH v. ALLEGED GAMING APPARATUS AND IMPLEMENTS AND MONEY, Francis J. Sullivan, claimant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 715

139 N.E.2d 715

335 Mass. 223

COMMONWEALTH v. ALLEGED GAMING APPARATUS AND IMPLEMENTS AND MONEY, Francis

J. Sullivan, claimant.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 1, 1956.

Decided Jan. 7, 1957.

Maurice M. Lyons, Dist. Atty., New Bedford, for commonwealth.

George P. Ponte, New Bedford, for claimant.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.

SPALDING, Justice.

This is a proceeding to forfeit property. The case was submitted to a judge of the Superior Court on a statement of agreed facts which may be summarized as follows: On September 26, 1952, police officers acting under a duly issued search warrant entered the dwelling house of Francis J. Sullivan in New Bedford and seized the following property: 'One block of tally sheets, five Armstrong sheets, one * * * electric adding machine, * * * one * * * metal folding table, a quantity of booking slips and $2,600 in currency.' At the time the officers entered the house Edward H. Sullivan, brother of Francis, was standing in the doorway of the room in which the above-prescribed property was found. No one else was present. The officers 'did not know from what source the money came nor for what purpose the money was used.'

On September 27, 1952, complaints were brought in the District Court charging Francis and his brother with 'maintaining a gaming nuisance; registering horse bets; possessing lottery tickets; and promoting a lottery.' Both were found not guilty of maintaining a gaming nuisance and both were found guilty on the other complaints. Upon appeal to the Superior Court each was convicted of promoting a lottery and registering bets in violation, respectively, of §§ 7 and 17 of G.L. (Ter.Ed.) c. 271.

Proceedings for forfeiture of the seized property were likewise instituted in the District Court and Francis J. Sullivan in whose home the property was seized appeared as claimant. After hearing, the seized property including the money was ordered forfeited. The claimant appealed to the Superior Court, G.L. (Ter.Ed.) c. 276, § 8, and the judge ordered a forfeiture of the property and reported the case. We are concerned only with the forfeiture of the money, for that was the only matter in issue in the Superior Court. No contention is made that the other property was not properly forfeited. It is agreed that the money belonged to the claimant at the time it was seized.

The claimant filed numerous requests for rulings but the action of the judge respecting them is not brought here by the report and will not be considered. The case was presented on a case stated and it is settled that in such a case requests for rulings have no technical standing, need not be dealt with, and amount only to arguments on the agreed facts. Howland v. Stowe, 290 Mass. 142, 146, 194 N.E. 888; Antoun v. Commonwealth, 303 Mass. 80, 81, 20 N.E.2d 423; O'Olimpio v. Jancoterino, 304 Mass. 200, 202, 23 N.E.2d 162. It is the duty of the judge to order the correct judgment on these facts. The question, therefore, brought here by the report is whether the order for judgment on the case stated was correct. See City of Quincy v. Brooks-Skinner, Inc., 325 Mass. 406, 410-411, 91 N.E.2d 206.

1. The claimant contends that on the notice by which the forfeiture proceedings were commenced the court could not order a forfeiture of the money here claimed. ¹ It appears that the original information on file in the District Court stated that the amount of mony to be forfeited was $2,600. The officer's return on the warrant likewise recited that $2,600 had been seized. An order of notice issued setting forth the time and place of the hearing and ordering attested copies of both the information and the order to be served on the claimant and to be posted on his premises. In the copies so served and posted it was stated that the amount to be forfeited was $26 instead of $2,600. There could of course be no forfeiture of the claimant's property without notice and the statute so provides. G.L.(Ter.Ed) c. 276, §§ 4, 5. See Attorney General v. Justices of Municipal Court of City of Boston, 103 Mass. 456, 468-469. Such a notice must inform the claimant with reasonable particularity of the property intended to be forfeited. Obviously a notice reciting that $26 is to be forfeited is a very different thing from a notice looking to the forfeiture of $2,600. The notice in this respect was defective and the defect was not immaterial. But we are of opinion that it is not now open to the claimant to raise this question. The forfeiture proceedings were first heard in the District Court and it does not appear that the question of the insufficiency of notice was there raised. It was incumbent on the claimant to raise that question there. Had the question been raised there the defect in the notice could have been easily remedied. It is provided by G.L. (Ter.Ed.) c. 276, § 6, that 'If, at the time appointed for the trial, such notice has not been duly served * * * or if other sufficient cause appears, the trial may be postponed to another day and place and further notice issued.' The claimant could not sit by and try the case on the merits and raise the question of defective notice for the first time in the Superior Court, upon appeal. See Commonwealth v. Certain Gaming Implements, 141 Mass. 114, 116, 5 N.E. 475; Phillips v. Suffolk Savings, Bank, 219 Mass. 597, 601, 107 N.E. 401; Miami Grove, Inc., v. Licensing Board for City of Boston, 312 Mass. 318, 323-324, 44 N.E.2d 637.

2. Admittedly the money here involved was not seized at a time when persons were engaged in unlawful gaming. Relying on Commonwealth v. Certain Gaming Implements, 317 Mass. 160, 162, 57 N.E.2d 542, the claimant argues that in these circumstances the money was not subject to seizure and...