Garland Novelty Co. v. State

• Decision Date: 20 December 1902
• Citation: 71 S.W. 257,71 Ark. 138
• Parties: GARLAND NOVELTY COMPANY v. STATE
• Court: Arkansas Supreme Court

71 S.W. 257

71 Ark. 138

GARLAND NOVELTY COMPANY v. STATE

Supreme Court of Arkansas

December 20, 1902

Appeal from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.

Affirmed.

STATEMENT BY THE COURT.

In January, 1901, the judge of the Garland circuit court issued to the sheriff of that county the following warrant, to-wit "The State of Arkansas to R. L. Williams, Sheriff of Garland

County Arkansas:

"Whereas the undersigned has reasonable ground to suspect that there is in a saloon at No. 198 Central avenue in the city of Hot Springs, owned by E. A. Smith, a certain gaming device commonly called a 'slot machine,' kept there contrary to the statute in such cases made and provided; you are therefore commanded to search there for such gambling device, and, if the same be found, then you forthwith seize, hold and take into possession the same, and hold the same, to be dealt with according to law, and for the further orders of the court. You will also summon E. A. Smith and Henry Hall to appear in the Garland circuit court on the 10th day of January, 1901, and show cause, if any, why said gambling device should not be condemned and destroyed according to law. Hereof fail not and make due return of this writ. Given under my hand, this 9th day of January, A. D., 1901.

"A. M. DUFFIE, Circuit Judge."

The sheriff served the warrant as directed, and made the following return thereon:

"State of Arkansas, County of Garland.

"I have this 9th day of January, 1901, duly served the within writ by taking into my possession the slot machine found at the within described place, and have served notice on E. A. Smith and Mr. Hall to appear in the Garland circuit court on the 10th day of January, 1901, at 9 o'clock a. m., as herein commanded. I have the slot machine in my possession subject to the order of the court.

[Signed]

"R. L. WILLIAMS, Sheriff."

On the return day of the writ, the Garland Novelty Company appeared, and by permission of the court filed its petition of intervention. In said petition the Novelty Company stated that it was the owner of the slot machine which had been placed in the saloon described in the warrant, and which had been seized and taken by the sheriff under the warrant. The company further alleged that the warrant was issued without authority in law, and was void, and that the sheriff had no right to hold the slot machine under said warrant, and it therefore prayed that the warrant be quashed, and the sheriff be ordered to restore the slot machine to the petitioner.

On the hearing of the case, the state introduced evidence showing that the slot machine in question was a gambling device, and that at the time of its seizure it was being used and operated as such. One of these witnesses was the manager of the Novelty Company, which owned the machine. He testified that the company owned fifteen or twenty slot machines which were operated by it in the city of Hot Springs in hotels and saloons, one of which was the slot machine seized by the sheriff. The slot machines, he said, were made and used for the purpose of playing a game of hazard at which money could be won or lost. The machine, to quote his words, "consists of an upright box with some kind of machinery on the inside with a dial face with numbers on it and a crank to turn it, and it is played by dropping money into the slot and turning the crank, and whether or not the party playing at it will win or not depends on where the hand stops on the dial." Said slot machines, he further stated, "are used for no other purpose but gambling, and cannot be used for other purposes."

After hearing this and other evidence, the court found that the "slot machine was a gambling device, made and used for the purpose of playing a game of hazard thereon, at which money could be won and lost." The court overruled the motion to quash the warrant, and gave judgment that he slot machine be forfeited, and ordered that the sheriff proceed, on the 15th of February, 1901, to publicly burn the same. The company appealed.

Judgment affirmed.

Wood & Henderson, for appellant.

Section 1618, Sand. & H. Dig., is unconstitutional. 75 Mo. 162; 57 Cal. 251; 78 Ky. 86; 39 Mich. 451.

RIDDICK, J. BATTLE, J., dissents.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from a judgment of the Garland circuit court directing the sheriff to destroy a certain slot machine, which the court found to be a gambling device and owned and operated as such. The Garland Novelty Company, the owner of the machine, having brought this appeal, now contends that the judgment of the court was without authority of law, and should be reversed, and that is the question we are asked to determine, and Which we will now consider.

Our statute declares that it shall be a misdemeanor to set up, keep, or exhibit any gaming table or gambling device of any kind or description. Sand. & H. Dig., § 1613. Another section of the statute makes it the duty of the judges of the circuit courts, on information given or on their own knowledge, or where they have reasonable ground to suspect that the law is being violated by the operation of such gambling devices, to "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." Sand. & H. Dig., § 1618.

Counsel for the Novelty Company contend that this section gave the court no authority to institute a trial to determine the character of the property seized, and that the statute is unconstitutional, for the reason that it directs the forfeiture and destruction of property without due process of law. But it will be noticed that the statute only authorizes the destruction of such gaming tables and gambling devices as the statute makes it a crime to keep and exhibit. The statute does not authorize the seizure and destruction of tables or other useful furniture simply because they may be found in a gambling house, or...