Martucci v. Ballenger
| Decision Date | 08 September 1948 |
| Docket Number | Motion No. 114. |
| Citation | 322 Mich. 270,33 N.W.2d 789 |
| Parties | MARTUCCI v. BALLENGER. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Clyde I. Webster, Circuit judge.
Mandamus action by Joe Martucci against John F. Ballenger, Commissioner of police, Detroit Police Department, to compel the defendant to return to the plaintiff a certain sum of money in the defendant's possession. From an order in favor of the plaintiff, defendant appeals.
Order vacated.
Before the Entire Bench.
Raymond J. Kelly, Corp. Counsel, and Nathaniel H. Goldstick, Asst. Corp. Counsel, both of Detroit, for appellant.
Joseph W. Louisell, of Detroit, for appellee.
This is an action by the appellee, Joe Martucci, for mandamus to compel the return to him of $599.91, which is in the possession of appellant. The circuit court issued the writ of mandamus directing appellant to return the money to appellee, and this appeal followed.
This money is admittedly the proceeds of unlawful gaming; more particularly from the running of a baseball pool. It came into possession of appellant on May 2, 1947, when three police officers of Detroit, Michigan, in answer to a complaint, arrested the appellee herein and one Frank Tripp at the latter's residence where they found them in possession of gambling paraphernalia. The arrest was made without a warrant. The officers then accompanied the appellee, Martucci, to his home which they entered with the consent of the appellee after he had opened the door for them. Here they confiscated more gambling paraphernalia, among which was a cigar box containing the money the return of which is herein sought, as well as several cancelled baseball pool tickets.
Charges were preferred against the appellee and Tripp for possession of gambling paraphernalia. The examining magistrate dismissed the complaint because he concluded that there had been an unlawful search and seizure, and in consequence the testimony before him was not sufficient to hold the defendants for trial. The circuit judge in granting the writ of mandamus in this civil action did so on the ground that he was bound by the finding of the examining magistrate that there had been an unlawful search and seizure.
The main issue in this case is whether or not the writ of mandamus should have been issued by the trial court. However, in determining that issue there are three questions presented by appellant first to be considered. They are:
‘1. Where the police seize money that is admittedly the proceeds of gaming, should the Court order its return by mandamus to the person from whom the money was taken?
‘2. Does the dismissal of the criminal case on technical grounds establish the right of the gambler to the return of the money seized?
In answer to the first of these questions, we are of the opinion that in this case the circuit court should not have ordered the return of this money to appellee. In the first place this money is admittedly gambling money; and in the second place, appellee by his own admissions has established that this money belongs to another person than himself, someone called ‘Vic’.
It is true that in the cases of Robinson v. Inches, 220 Mich. 490, 190 N.W. 227, and Bitonti v. Wayne County Auditors, 311 Mich. 322, 18 N.W.2d 841, we held that money seized in a like manner as in this case should be returned. But in neither of these cases was there an admission that it was gambling money. In fact, there was very little evidence that it was gambling money at all. However, in Kosiba v. Wayne Co. Bd. of Auditors, 1948, 320 Mich. 322, 31 N.W.2d 68, we held that mandamus would not issue to compel the return of money which the plaintiff knew was received as a result of gambling. Also, in Robinson v. Inches, supra [220 Mich. 490,190 N.W. 228], in our opinion we said: ‘It being established that plaintiff is entitled to the money * * *, there remains to be done by defendants a single, official, ministerial act-returning the money.’ Thus it is seen that the Court in that case was moved by the fact that the plaintiff was entitled to the money, as well as the fact that there was not sufficient evidence that it was gambling money. But in this case the appellee by his own admissions has shown that he is not entitled to the money.
Our answer to the second question must also be in the negative. In Kosiba v. Wayne Co. Bd. of Auditors, supra, although there was a conviction in the criminal proceedings, our decision in the civil action in refusing the writ of mandamus...
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