King v. McCrory
| Decision Date | 07 June 1937 |
| Docket Number | 32766 |
| Citation | 179 Miss. 162,175 So. 193 |
| Court | Mississippi Supreme Court |
| Parties | KING v. MCCRORY, MARSHAL |
1 GAMING.
The mere possession of a slot machine or even its operation for amusement and not for profit does not constitute a crime (Code 1930, section 821).
2 GAMING.
A city marshal had no authority, without affidavit or search warrant, to seize slot machine which was not operated by person keeping it, since statute does not contemplate that officers may seize property not contraband without a warrant unless such property is being used by persons in such manner as to make out a crime (Code 1930, sections 821, 966).
3. REPLEVIN.
An owner of a slot machine which was kept on premises of another not for purpose of operating it could replevy such machine from city marshal who, while searching premises for intoxicating liquors, found machine and without taking out any legal papers or making any affidavit took the machine into his possession, where marshal could not show that machine was being used for purpose of gaming (Code 1930, sections 821, 966).
APPEAL from the circuit court of Scott county HON. D. M. ANDERSON, Judge.
Action by T. R. King against H. B. McCrory, Marshal, City of Forest. From a judgment for defendant, plaintiff appeals. Judgment reversed and rendered, and cause remanded.
Reversed and remanded.
Colbert Dudley, of Forest, for appellant.
It is undisputed that H. B. McCrory, appellee here, obtained possession of the slot machine involved in this action during a search of the premises occupied by Mrs. Thelma Mathiston, under authority of a search warrant issued for the search of these premises for intoxicating liquor. We submit the case of Cofer v. State, 118 So. 613, is controlling in this case.
The possession of a slot machine is not per se a violation of the law.
Rawls v. State, 12 So. 584; Section 821, Code of 1930.
It is undisputed that the machine in controversy was the property of appellant, T. R. King. That replevin will lie for the recovery or possession of property unlawfully seized by an officer is well settled.
54 C. J. 434; Duboff v. Haslan, 182 N.Y.S. 896; In re Massey, 56 Kan. 120, 42 P. 365.
We respectfully submit that the whole transaction having its very inception in an unlawful and unjustifiable seizure and being bad ab initio cannot have its character changed any more than a leopard can change its spots. Of course the defendant testified at length of a confession or admission said by him to have been made by the person in whose possession the machine was found, but we might as soon expect him to come to court without his pants and pistol as to expect him to come without such testimony.
Frank F. Mize, of Forest, for appellee.
In our opinion the facts in this case place it squarely within the provisions of section 966 of the 1930 Code, and the officers had the authority, and it was their duty, to seize this machine and destroy it as provided for in said section.
Counsel for the appellant cited the case of Cofer v. State, 118 So. 613, as controlling in this case. We think that case not applicable to the case at bar for the Cofer case states that it was Cofer's premises searched, while in this case, the premises searched and the premises in which the machine was found belonged to one Mrs. Alexander, over which premises the appellant had no control, no interest in, nor right to. Hence he cannot complain.
In the case of Polk v. State, 142 So. 480, this court held that persons not owners of premises searched could not complain of evidence obtained against them by illegal search.
The admitted facts show beyond any doubt that money was exhibited by said machine for the purpose of betting or alluring persons to bet at the game, and we submit that the money and the gambling device were properly seized by the officers and should be destroyed as provided for by section 966 of 1930 Code. We respectfully submit that this case should be affirmed.
Appellant, T. R. King, brought an action in replevin against H. B. McCrory, appellee, for the unlawful taking and detention of a slot machine.
It was alleged in the affidavit that this slot machine was taken from appellant within a thirty-day period, and it was further alleged that McCrory gave bond under the statute in such cases, but when the constable went to take the machine, instead of delivering it to King, he took the bond of the defendant for it. The case was tried in a justice of the peace court where judgment was rendered for King. McCrory appealed to the circuit court where the case was tried, and verdict rendered in favor of McCrory, from which this appeal is prosecuted.
It appears from the evidence that McCrory, who was city day marshal of Forest, and also another, who acted as night watchman, secured a warrant to search the premises of Mrs Alexander, who operated a small store, for intoxicating liquor. Mrs. Alexander, with her daughter, Mrs. Goodwin, had living quarters attached to a part of the store, separated by a doorway. This search, as stated,...
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Crosby v. State
... ... committed and that the person he is aiding has committed it ... It is often a difficult task to show guilty knowledge ... King v ... State, 123 Miss. 532, 86 So. 339 ... As ... further showing that evidence to establish guilty knowledge ... is admissible, even ... ...
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Stevens v. State, 39760
...of the Laws of 1938 so as to make it unlawful for one to own, control, or possess a slot machine. Therefore, the cases of King v. McCrory, 179 Miss. 162, 175 So. 193, and State v. Stigler, 179 Miss. 276, 175 So. 194, decided prior to the enactment of Chapter 353 of the Laws of 1938, holding......