McCoy v. Zane

• Decision Date: 30 April 1877
• Parties: MCCOY, APPELLANT v. ZANE.
• Court: Missouri Supreme Court

65 Mo. 11

MCCOY, APPELLANT

v.ZANE.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jasper Court of Common Pleas.--O. E. BROWN, Judge.

Thomas & Garrison, for appellants.

Walser & Cunningham, for respondent.

NAPTON, J.

This was an action in the Common Pleas Court of Jasper County to recover damages from the sheriff of said county for the destruction of a Roulette wheel and table under sections 24, 25, 26 and 27 of article 8 of the statutes concerning crimes and punishments (see W. S. p. 503). The plaintiff was the owner of the Roulette table at the time of its destruction. The defendant justified under the following order of the circuit judge dated November 26, 1873:

“STATE OF MISSOURI,

)

)

ss.

County of Jasper.

)

It appearing to the undersigned Judge of the Circuit Court within and for the County of Jasper that, in obedience to a warrant issued on the 22d day of Nov., 1873, directed to the sheriff of said county hereto annexed, he said sheriff did in the city of Joplin, in said County, seize the following gambling devices to wit: One Faro Bank and outfit, one E. O. Roulette table and wheel and part of a Keno outfit, and the said articles being found to be gambling devices, it is therefore ordered by the undersigned Judge aforesaid, that said gambling devices be publicly destroyed by burning or otherwise, and that this order be executed by the sheriff of Jasper County, and that he make a return of this order, and that this order, the warrant and return thereon be filed in the office of the clerk of the Circuit Court of said county, and that the cost of this proceeding be certified by the sheriff to the County Court of Jasper County for payment. Given under my hand this 26th day of November, A.D., 1873.

B. L. HENDRICK,

Circuit Judge.

The following return was made on the order:

Executed the above order of Court by destroying by fire and otherwise the above described gambling devices as ordered by the Hon. B. L. Hendrick, Judge of the Circuit Court of Jasper County, Missouri, in a public place, in the City of Carthage, County of Jasper, Missouri, on the 27th day of November, A. D. 1873.

J. S. ZANE,

Sheriff of Jasper Co. Mo.”

Upon the trial of this case, it appeared from the defendant's statement as a witness that the Roulette wheel was packed away in a box at the time it was seized and was not then in use. The defendant did not know to whom it belonged at the time of the seizure, but before it was taken out of the room where it was stored, he was notified by the plaintiff in writing that the property was the plaintiff's and that it was not used for gambling purposes. The plaintiff on his examination said that he had owned the property sued for about three months prior to the date of its seizure, that it was stored away in the original package and was used for no purpose whatever, either by the plaintiff or any one else, that it had never been used for gaming purposes since he got it; that he took the property on a debt which was due him. The plaintiff offered to prove by other witnesses that he had lived in Joplin for more than two years, that he has a reputation as an upright citizen, that the property in question had never been used for any purpose, that ever since the plaintiff became the owner it had been packed away in a box and stored away in a room and had never been taken out of the room and box since the plaintiff owned it. This proposed evidence was rejected by the Court. The Court instructed the jury; “that although the defendant did take and destroy an E. O. Roulette table and wheel belonging to the plaintiff, yet if they believed from the evidence that the defendant took and destroyed said Roulette wheel and table as said sheriff under certain warrants, read in evidence signed by B. L. Hendrick, Circuit Judge for Jasper County, Missouri, the jury will find the issue in favor of the defendant.” Thereupon the plaintiff took a non-suit with leave to move to set it aside.

I. The provisions of the statute under which the conflagration occurred are as follows:

1. CRIME: gaming device: statute construed.

SECTION 24. Whenever any judge or justice of the peace shall have knowledge or shall receive satisfactory information that there is any prohibited gaming table, or gaming device kept or used within his county, it shall be his duty forthwith to issue his warrant, directed to the sheriff or any constable, to seize and bring before such judge or justice such gaming table or other device.

SECTION 25. If any judge or justice have knowledge, or shall be satisfactorily informed of the name or description of the keeper of any such prohibited gaming table or device, he shall,...