Syllabus
by the Court.
The
courts will not lend their aid to a suitor seeking to regain
possession of implements of crime, designed for no other
purpose than the violation of law or the injuring of the
morals of the people.
An
action in trover will not lie against a sheriff in favor of
the keeper of a gaming house as to articles which were seized
while being used in the operation of the gaming house, or
while being kept for that purpose, and which are adaptable
only to the purpose of such illegal and immoral occupation.
Error
from City Court of Macon; John R. L. Smith, Judge pro hac
vice.
Action
by one Porter against one Robertson, as sheriff. Judgment for
plaintiff, and defendant brings error. Reversed.
POWELL
J.
Trover
and bail was brought by Porter against Robertson, the sheriff
of Bibb county, for the recovery of the possession of the
following articles: "1 large oak table, with carved
legs, worth $145; 1 roulette wheel, with complete appliances
worth $400; 1 book maker's wheel, worth $150; 1 large
walnut table, worth $60; 1 long oak table, with rounded
corners, worth $90; 1 round oak table, worth $25; 5,000
composition discs or chips, worth $175; 1 cribbage or faro
layout, $25; 1 glass layout for book maker's wheel, worth
$40; 1 long pine table, worth $12; 1 lot playing cards, worth
$10; and 1 lot dice, worth $5." The defendant answered
and, without admitting plaintiff's ownership of the
articles sued for, and after denying his right to the
possession of said articles and to the recovery of the same
set up the following allegations as a defense to the action
brought:
"(6) And for further answer to said petition defendant
shows that the personalty described in said petition was
manufactured and sold for the purpose of being used in the
maintenance of a gaming house and room, where persons would
come together and play and bet for money and other valuable
things at games and devices for the hazarding of money and
other things of value, in the playing of which games and
operating said devices said personalty was to be used. And
much of said personalty, to wit, one roulette wheel and
appliances, one book maker's wheel, one cribbage or faro
layout, and one glass layout for book maker's wheel
could not be used, and is unfit to be used for any other
purpose than gaming purposes aforesaid. And defendant shows
that at the time he took possession of said personalty, as
hereinafter set forth, all of said personalty was being used
in the maintenance of a gaming house and room in said county
of Bibb, where persons were permitted, with the knowledge of
the person maintaining said gaming house and room, to come
together and play for money and other valuable things at
games and devices for the hazarding of money and other things
of value; and said personalty was used in the playing and
operating of said games and devices for the hazarding of
money and other things of value, and the said personalty had
been so used in the maintenance of said gaming house and room
and the operating of games and devices for the hazarding of
money and other things of value, as aforesaid, continuously
for a long time next preceding the date on which said
personalty was seized by this defendant, as hereinafter
stated. And defendant shows that said personalty was being
used, as aforesaid, in the maintenance of a nuisance which
tended to corrupt the public morals, which said nuisance was
being maintained by and with the use of said personalty at
the time said personalty was seized by defendant, and had
been so used for a long time immediately preceding its
seizure.
(7) And for further answer defendant
shows that while said personalty was being used in the
maintenance of a gaming house and room, and in the
maintenance of a nuisance tending to corrupt the public
morals, as alleged in the foregoing paragraph of this answer,
it came to the knowledge of defendant that said personalty
was being so used; and defendant, being then, as now, the
sheriff of Bibb county, Georgia, seized and took possession
of said personalty in the discharge of his duty as sheriff of
said Bibb county, for the purpose of preventing the further
unlawful maintenance of the gaming house and room, and for
the purpose of abating the nuisance aforesaid. And defendant
shows that said personalty was absolutely necessary to the
maintenance of said gaming house and room and said nuisance,
and that the seizure of said personalty and holding
possession thereof, or destroying it, was necessary to
prevent the further unlawful use of said property in the
maintenance of a gaming room and house, and in order to abate
the aforesaid nuisance, which was being maintained by and
with the use of said personalty, and was the only way in
which defendant, as sheriff of Bibb county, could abate said
gaming room and house and nuisance. And defendant shows that
by his seizure of said personalty and retaining possession
thereof (all of which he did and has done in the discharge of
his duty as sheriff of said Bibb county) he did abate said
gaming house and room and said nuisance, to the maintenance
of which gaming house and nuisance said personalty was then
and there being used. And defendant shows that the
destruction of said personalty or the retention of its
possession by defendant and his successors in office is
necessary to the continued abatement of said gaming house and
nuisance, and that the recovery of said personalty by the
plaintiff would enable plaintiff to re-establish, re-erect,
and continue the aforesaid gaming house and nuisance, by and
with the use of said personalty, or enable said plaintiff to
erect and maintain a like gaming house and nuisance within
the state of Georgia, contrary to the laws of said state, the
good order, peace, and dignity thereof.
(8) And for further answer defendant shows that, when he
seized said personalty as aforesaid, it was being used in the
violation of the criminal laws of the state of Georgia, in
the maintenance of a gaming house and room, and in the
maintenance of a nuisance which tended to corrupt and did
corrupt the public morals; and the recovery of said property
is sought by the plaintiff so that said personalty may be
used in the violation of the criminal laws of the state of
Georgia, and in the maintenance of a nuisance tending to
corrupt the public morals. Said personalty was manufactured
for such purpose and use, and is unfit for any other purpose
or use, and is not salable for any lawful use.
(9) And defendant shows that, by reason of all the facts
hereinbefore alleged, the said plaintiff ought not to have
and recover said personalty, and the courts of the state of
Georgia ought not to lend their aid in the recovery of said
personalty, so that it may again be put to the illegal and
immoral uses and purposes aforesaid, in which it was being
used when seized and taken possession of by defendant as
aforesaid, and for which illegal and immoral uses and
purposes it was manufactured and sold."
A
demurrer was interposed by the plaintiff to defendant's
answer, and particularly to the paragraphs set forth above
in substance as follows: (1) Said answer shows no sufficient
legal reason why plaintiff should not have and recover of
defendant the property in dispute in that the same sets up no
sufficient facts which should defeat plaintiff's said
right of recovery. (2) Specially demurring to paragraph 6 of
said answer, plaintiff submits that said paragraph contains
no such statement of fact as would defeat or tend to defeat
plaintiff's said right of action or his right of recovery
in said suit. (3) Further, that even though it be true that
said personal property was manufactured, sold, and used for
the purpose of gaming and conducting a gaming business, such
state of facts affords no legal reason why defendant should
seize and hold the same, and constitutes no valid legal
reason why plaintiff should not have and recover the same of
defendant. (4) That the same shows no such state of facts as
in law would justify defenda...
