People v. Two Roulette Wheels & Tables

• Decision Date: 08 June 1945
• Docket Number: Gen. No. 43277.
• Citation: 326 Ill.App. 143,61 N.E.2d 277
• Parties: PEOPLE v. TWO ROULETTE WHEELS AND TABLES et al.
• Court: United States Appellate Court of Illinois

326 Ill.App. 143

61 N.E.2d 277

PEOPLE

v.TWO ROULETTE WHEELS AND TABLES et al.

Gen. No. 43277.

Appellate Court of Illinois, First District, Third Division.

May 18, 1945.

Rehearing Denied June 8, 1945.

Appeal from Criminal Court, Cook County; Rudolph F. Desort, Judge.

Sam Romano and others were indicted for conspiracy to keep a gambling house. Thereafter the named defendant filed a petition for an order that two roulette wheels and tables and other articles should be returned to him. The defendants were found not guilty. Thereafter the State's Attorney in a petition entitled the People of the State of Illinois v. Two Roulette Wheels and Tables et al., and filed in the same case and bearing the same number, asked for an order authorizing destruction of the articles as gambling equipment. From an order ordering the return of the articles to Sam Romano, the People appeal.

Reversed and remanded, with directions.Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for appellant.

George M. Crane, of Chicago, for appellees.

BURKE, Presiding Justice.

On October 30, 1943 the Grand Jury returned an indictment to the Criminal Court of Cook County charging that Sam Romano and 11 other persons on or about October 7, 1943 conspired to keep a gambling house at 4730 West Cermak Road in the Town of Cicero. On March 13, 1944 Romano filed a petition in the case representing that on October 7, 1943 he occupied the second floor of the premises at 4730 West Cermak Road, Cicero, Illinois; that he had in the premises certain personal property including 6 tables, 3 adding machines and 3 change machines; that on that date certain deputy sheriffs and police officers assigned to the State's Attorney's Office gained entrance to the premises by chopping down the doors; that they did not have a warrant to search the premises; that they were not in pursuit of any person who had committed a crime; that they did not see any violation of law previous to their unlawful entry; that they seized the articles mentioned; that on a trial the articles may be introduced in evidence; that on the same day officers attached to the State's Attorney's Office went to the premises at 4738 West Cermak Road, Cicero, Illinois, also occupied by petitioner; that they smashed the door leading to the premises and removed therefrom 2 roulette wheels, 8 tables, 3 change machines, 3 adding machines and $13,000 contained in a safe which the officers forced open; that the officers did not see any violation of law previous to their unlawful entries; that the unlawful searches and seizures were in violation of his constitutional rights; and he prayed for an order suppressing as evidence against him any of the articles so taken, and for a further order directing the officers to return the ‘articles' to him. On the hearing of the petition Nicholas Disteldorf, called as a witness in behalf of petitioner, testified that he was a police officer of the City of Chicago, attached to the office of the State's Attorney of Cook County; that on October 7, 1943 he went to 4738 West Cermak Road, Cicero, Illinois, which had a store front; that he got into the store by ‘going through the door’; that he had no search warrant at the time; that he found nothing on the first floor; that he then went to the basement and found ‘nothing in the basement’; that he looked in several rooms in the basement and in one of the rooms in the front portion of the basement he found 2 roulette wheels and tables, 4 black jack tables, 1 dice table, 1 chuck-a-luck cage, 36 decks of playing cards, 6 dice racks and 4 chip racks; that at ‘that particular time none of the articles was being used in gambling’, and that he seized ‘the said articles'. This was all the evidence given on the motion. On March 14, 1944 the court sustained the motion to suppress the articles expected to be offered in evidence, but did not enter any order with reference to the return of the articles. A trial under the indictment before the court and a jury resulted in a verdict, returned March 20, 1944, finding all of the defendants not guilty, and judgment was entered on the verdict.

On April 17, 1944 the State's Attorney in a petition entitled People of the State of Illinois vs. Two Roulette Wheels, et al., and filed in the same case and bearing the same number as the indictment hereinbefore mentioned, represented that ‘On October 7, 1943, upon information received, one Nicholas Disteldorf, a police officer of the City of Chicago, attached to the office of the State's Attorney of Cook County, Illinois, entered the premises at 4738 West Cermak Road in the Town of Cicero, Illinois, and there found the following gambling equipment: 2 roulette wheels and tables, 4 black jack tables, 1 dice table, 1 chuck-a-luck cage, 36 decks of playing cards, 6 dice racks and 4 chip racks, which articles are gambling equipment per se, upon the action of which money is staked, hazarded, bet, won or lost; that the said gambling equipment was seized by the said Nicholas Disteldorf and is now in the custody of the State's Attorney of Cook County, Illinois'; and prayed the court to enter an order authorizing him to destroy such articles. No order was sought or entered requiring either the People or the petitioner to answer either petition. Apparently, the parties and the Court treated the People's petition as an answer to Romano's petition, with the addition of a prayer for destruction of the articles. On June 23, 1944 the People in support of their petition, presented by stipulation the same testimony of Nicholas Disteldorf which had been presented on the hearing of the motion to suppress. On June 28, 1944 the court entered an order finding that it had jurisdiction of the parties and the subject matter; that the premises occupied by Romano were located at 4738 West Cermak Road, Cicero, Illinois; that the entry by the police officers was illegal and without authority of law as to the premises at 4738 West Cermak Road, Cicero; that the search of the premises was illegal and without authority of law; that the seizure of the enumerated articles at 4738 West Cermak Road was illegal; that the articles were not used for gambling at the time they were found and seized; that the articles are now in the custody of the Cicero Police Department and the State's Attorney, and the court ordered that all of the articles seized in the premises at 4738 West Cermak Road be returned to Romano, to which the People excepted. On July 10, 1944 the People, by the State's Attorney, filed a notice of appeal from ‘an order of the Criminal Court of Cook County refusing to order the destruction of the above named instruments and tables.’ The notice of appeal states that ‘the appeal is designed to reverse the judgment of the Criminal Court of Cook County and the order refusing to order the destruction of the above mentioned articles against which these proceedings were had.’

The record does not show that the court ruled on the petition of the State's Attorney for an order authorizing him to destroy the alleged gambling equipment. However, as the court entered an order directing that the seized articles be returned to Romano, this inferentially amounted to a denial of the State's Attorney's petition for an order to destroy the articles. Appellant states that this is a proceeding in rem and has none of the elements of a criminal case. From a recitation of the facts as shown by the record, the police entered the premises at 4730 West Cermak Road and also at 4738 West Cermak Road. The indictment referred to the premises at 4730 West Cermak Road, but the alleged gambling paraphernalia seized at 4738 West Cermak Road are the only articles involved in the instant case. The attorney for the appellee states that the articles seized at 4730 West Cermak Road were ordered destroyed as gambling equipment, as prayed by the State's Attorney, but this does not appear in the record. Section 26 of Article VI of the Constitution of Illinois, Smith-Hurd Stats. provides that the Criminal Court of Cook County shall have the jurisdiction of a Circuit Court in all cases of criminal and quasi criminal nature arising in the County of Cook, or that may be brought before the court pursuant to law, and that it shall have no jurisdiction in civil cases, except in those on behalf of the people and incident to such criminal or quasi criminal matters. We assume that it is the People's position that the petition to destroy the alleged gambling paraphernalia was ‘incident to such criminal or quasi criminal matters.’ Appellee maintains that the order appealed from was entered in a criminal proceeding. Sec. 747, Chap. 38, Ill.Rev.Stat.1943, limits the right of the people to a writ of error to cases in which the trial court had ‘quashed’ or ‘set aside’ an indictment or information, and does not grant a general right of review to the people. People v. Burns, 364 Ill. 49, 4 N.E.2d 26;People v. White, 364 Ill. 574, 5 N.E.2d 472.

In urging a reversal of the order, the People state that it is elementary that gambling devices which are capable of no use for lawful purpose are not the subject of property, relying on Frost v. The People, 193 Ill. 635, 61 N.E. 1054,86 Am.St.Rep. 352;Bobel v. The People, 173 Ill. 19, 50 N.E. 322,64 Am.St.Rep. 64;People v. One Pin Ball Machine, 316 Ill.App. 161, 44 N.E.2d 950. The Frost and Bobel cases involve the application of Division VIII of the Criminal Code, Secs. 691–699, Ch. 38, Ill.Rev.Stat.1943, regulating the procedure concerning search warrants. Sec. 1 provides that ‘when complaint is made in writing, verified by affidavit, to any judge or justice of the peace, that personal property (particularly describing the same) has been stolen, embezzled, or fraudulently obtained * * * and that the complainant believes that it is concealed in any house or place (particularly describing the...