Furth v. State

• Decision Date: 23 January 1904
• Citation: 78 S.W. 759,72 Ark. 161
• Parties: FURTH v. STATE
• Court: Arkansas Supreme Court

78 S.W. 759

72 Ark. 161

FURTH v. STATE

Supreme Court of Arkansas

January 23, 1904

Appeal from Pulaski Circuit Court ROBERT J. LEA, Judge.

Affirmed.

This was a proceeding in rem to obtain the seizure and destruction of certain gaming devices. R. A. Furth intervened as their owner, and has appealed from an adverse judgment. The facts are stated by the court as follows:

STATEMENT BY THE COURT.

On June 6, 1903, upon affidavit filed before Judge R. J. Lea, judge of the Sixth Judicial Circuit of the state of Arkansas stating that certain gambling devices, commonly called a roulette wheel, or rouge et noir; also crap table, also chuck-a-luck, also faro bank table, also race horse wheel or bookmaker's wheel, is now kept at 109 South Main street on second floor, in the city of Little Rock, in said county of Pulaski and state of Arkansas, contrary to the statute in such cases provided, and praying a warrant for search for them, and that, if found, the sheriff forthwith proceed to publicly burn the same according to law; the judge issued his warrant commanding the sheriff to seize and hold the same to be dealt with according to law, and for the further order of the court, and to summon the party in possession of the property to appear before him in ten days, and show cause, if any, why such gambling devices should not be condemned and destroyed according to law. The warrant was served, the gambling devices seized, and the appellant, R. A. Furth filed before the judge a sworn petition to be allowed to intervene, claiming that said judge had no authority or jurisdiction; that he was the owner of the property seized that the same was not such as the law makes it a crime to keep and exhibit; that said property can be and is used for lawful and ordinary purposes, and is of great value as property that is used for legitimate purposes. Permission was given him to intervene.

The testimony of witnesses was taken as to the character and use made of the property, and we think that it was clearly shown that the articles seized--being two tables--were gambling tables, made for the purpose of being used as gambling tables; that they had been used and kept, and were used and kept, as gambling tables, and that they were of but little value and use, except as gambling devices. The appellant, Furth, was sworn as a witness, and objected, and refused to testify, on the ground that his evidence might tend to criminate him, but his objection was overruled, and he was compelled by order of the court to answer questions propounded by the court, the court stating to him at the time that, if he asked him any question the answer to which would tend to criminate him, he might decline to answer it; and he objected to testifying, and, his objection being overruled, he excepted. The appellant moved for a jury trial, that the issues be tried by a jury, which was denied, and he excepted. The issues were determined by the court for the appellee. The appellant filed a motion for a new trial, which was overruled, and he excepted, and appealed to this court. He gave bond, and obtained a supersedeas.

Judgment affirmed.

Fulk, Fulk & Fulk, J. A. Gray and F. T. Vaughan, for appellant.

The cause must be reversed for the error in compelling Furth to testify. 70 Ark. 272, 284; Const. 1874, art. 2, § 8. This is true, even if this is not a criminal case. 15 Ark. 649; 59 L. R. A. 437, 441; 24 S.W. 1038; 142 U.S. 547, 586; 1 Burr's Trial, 244; 75 Va. 892; 107 Mass. 182; 15 L. R. A. 676; 1 Whart. Ev. § 536; 4 Wend. 229; 78 Va. 493; 24 Gratt, 624; 58 N.H. 314; 9 Am. Rep. 22-28; 143 N.Y. 219; 9 Am. Cr. Rep. 760; 62 Ark. 538, 540; 67 Ark. 163. Sand. & H. Dig. §§ 1618, 1619 are unconstitutional, as depriving an owner of his property without due process of law. 67 Cal. 251; 62 Me. 24; 80 Ib. 206; 70 Mo. 152; 124 Ind. 308; 60 Ind. 371; 39 Am. Rep. 298; 35 Id. 420; 40 Id. 115; 33 Id. 414; Black, Intox. Liq. § 52, pp. 70-71; 61 Am. Dec. 381; 2 Tied. 167; 2 Curt. 187; 155 Ill. 242-3. Cf. 152 U.S. 133, 140, 144; 71 S.W. 257, 258, 259. Sand. & H. Dig. §§ 1618-1619, supra, are also void for uncertainty. 47 Ark. 404-6; Suth. Stat. Const. §§ 235-240; Endl. Int. Stat. §§ 4, 7, 8, 10, 18, 22, 384; 23 Am. & Eng. Enc. Law, 296-7; Ib. 298-9, 301, 303-353, 385; 43 Am. St. 525, 527. As to authority and duty of courts to declare statutes void for uncertainty see: 45 Ark. 158; Sedgw. St. Const. 250-251, 253, 263-4-5; 23 Am. & Eng. Enc. Law, supra; 13 Abb. N. C. 424; 2 Pet. 93; 14 Pet. 178; 66 Md. 215; 7 N.Y. 97; 8 B. & C. 99; 1 El. & Bl. 516; 18 Oh. St. 462; Dwarris, Stat. § 579. Sand. & H. Dig. §§ 1618-19 are repealed by the Wilson act (Acts 1901, 114); 10 Ark. 590; 47 Ark. 488; 57 Ark. 508-511; 70 Ark. 25; 54 Ark. 182; 43 Ark. 425-427; 43 Ark. 364-367; 31 Ark. 17; 46 Ark. 438. This is a criminal proceeding, in its nature. 116 U.S. 616. The court erred in refusing to allow appellant a jury. Sand. & H. Dig. § 5794; 70 Ark. 98; 58 Ala. 599; 43 Am. St. Rep. 525; 14 Utah 293; 24 N.E. 978-980; 44 Am. Rep. 128, 131; 185 Ill. 242-3; Cooley, Const. Lim. 513; 44 N.Y. 553; 18 How. Pr. 181; 18 Hun, 289; 31 Hun, 596; Sedgw. St. Const. §§ 482, 483, 486, 497; 6 Am. & Eng. Enc. Law (2d Ed.), 974-978; 15 Am. Dec. 161; 24 S.C. 158; 36 S.C. 165; 89 Cal. 597; 66 Mich. 373; 33 N.W. 840; 15 L. R. A. 441; 43 Ib. 33; Bl. Intox. Liq. §§ 62, 365-6; 43 Am. St. 525, 528; 66 N.H. 622, 639; 14 Utah 293; 66 S.W. 345; S. C. 70 Ark. 94; 49 Me. 285; 80 Me. 91; 90 Me. 57; 40 Ia. 95; 47 Ia. 418; 49 Ia. 351; Wells, Ques. of Law and Fact, § 119; 21 Am. & Eng. Enc. Law, 977; 71 Ia. 216; 1 Gray, 1; 105 Mass. 595; 115 Mass. 142; 15 Cal. 302; 9 Oh. Cir. Ct. Rep. 178; 153 N.Y. 188; 61 Am. Dec. 397; 153 N.Y. 188.

George W. Murphy, Attorney General, Eben W. Kimball and J. A. Comer, for appellee.

Furth came voluntarily in to the case as a witness, and was therefore bound to submit to a full cross-examination. 1 Gr. Ev. § 451; 10 Fost. 540; 28 Conn. 309; 1 C. & P. 278; 4 N.H. 562; 11 Cush. 437, 439. The act is not unconstitutional as depriving appellant of his day in court. 65 Ark. 613-615; 64 Ark. 609; 152 U.S. 133; 71 S.W. 257. The act was not repealed by the Wilson act. Sedgw. Const. Stat. 97, 98. The constitutional grant of right to trial by jury applies only to cases where it existed at common law, and not to summary proceedings in rem. 36 Ark. 27; 32 Ark. 17, 553; 40 Ark. 296, 297; 48 Ark. 426; 12 Enc. Pl. & Pr. 239; 152 U.S. 133.

OPINION

HUGHES, J. (after stating the facts).

The objection that there is reversible error in the court's overruling the objection of the appellant to giving testimony in the case on the ground that it might tend to criminate him is not tenable, we think, for the following reason: It does not appear to us that the testimony he gave would tend in fact to criminate him. But, without the testimony of the appellant, the evidence otherwise is such that no reasonable doubt can be entertained that the devices were gambling devices, kept and used for gambling, practically alone, and that they were kept and used in violation of the statute.

The appellant contends that the act providing for this proceeding is void, because sections 1618 and 1619 of the statute are unconstitutional, because they are uncertain and ambiguous.. We do not consider this objection sound. These sections read as follows:

Section 1618, Sandels & Hill's Digest, says: "It is hereby made and declared to be the duty and required of the judges of the supreme court, the judges of the circuit courts and of the justices of the peace, on information given or on their own knowledge, or where they have reasonable ground to suspect, that they issue their warrant to some peace officer, directing in such warrant a search for such gaming tables or devices hereinbefore mentioned or referred to, and directing that, on finding any such, they shall be publicly burned by the officer executing the warrant. Such warrant may be substantially in the following form:" Here follows the language of the warrant. Though the meaning of this section might have been made plainer by particularity in the use of language, it is easily understood by anyone who does not want to misunderstand, and the court has no difficulty in determining what it means, and this objection on account of uncertainty is not sustained. Section 1619 only provides for the fees of the officer executing the warrant to be paid by the person keeping such gambling devices, in case they are adjudged to be burned. There is no uncertainty in this section.

We do not think these sections are repealed by what is known as the "Wilson Act" (Acts 1901, p. 114). We do not think the two acts inconsistent, or that the Wilson act covers the entire subject-matter of these sections in such manner as to amount to a repeal, or that the legislature intended by the latter act to repeal the former act.

The objection that the act in question does not provide for a jury is a serious one. But this is a proceeding in rem of a civil nature. It is a summary proceeding in the exercise of the police power of the state, under a statute passed to suppress the nuisance of gambling. Gambling was a nuisance at common law, and in such case trial by jury was not a right at common law. It is only in case where a jury could be demanded as a matter of right at common law that the refusal of a jury under our constitution is ground for reversal.

The contention is made here that the legislature had no right or power to enact this statute. We understand that it is competent for the legislature to provide by statute for the suppression of nuisances by a summary proceeding, and to authorize the destruction of gambling devices the use of which constitutes a nuisance. The principle is settled in case of the Garland Novelty Co. v. State,...