Soper v. Michal

• Court: Maryland Supreme Court
• Writing for the Court: STOCKBRIDGE, J.
• Citation: Soper v. Michal, 123 Md. 542, 91 A. 684 (Md. 1914)
• Decision Date: 25 June 1914
• Docket Number: 21.
• Parties: SOPER et al. v. MICHAL.

91 A. 684

123 Md. 542

SOPER et al. v. MICHAL.

No. 21.

Court of Appeals of Maryland

June 25, 1914

Appeal from Superior Court of Baltimore City; Chas. W. Heuisler Judge.

"To be officially reported."

Replevin by Frank Michal against Morris A. Soper and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Robert F. Stanton, of Baltimore, for appellants. James A. Latane, of Baltimore (Albert S. J. Owens, of Baltimore, on the brief) for appellee.

STOCKBRIDGE J.

This is an action of replevin to recover 98 machines of the variety commonly designated as "slot machines," a roulette wheel, and the appurtenant mechanism, which had been seized by the appellants as police commissioners of Baltimore city. At the time of the seizure all of the articles were in the possession of the appellee, in a single room, part of the first floor of a building on Born alley, the remainder of the floor being occupied and used as a carpenter shop. The ownership of the property in question is not entirely clear. Some portion of the machines seem to have belonged to the appellee, while some may have been sent to him for alteration or repair. A small number of them had, in addition to their main feature, a musical or chewing gum attachment, but in all the leading characteristic was the possibility held out for gambling, and some of the machines at the time of seizure were susceptible of no other use. There is no evidence to show that they ever had been used by the appellee for such a purpose, either at the place on Born alley or elsewhere.

The important question in this case is the right of the police authorities of the city of Baltimore to summarily seize and retain possession of these machines as a matter of preventive justice when no charge whatever of a violation of the laws of this state against gambling had at the time, or has at any time since, been made against the appellee, and there is no claim that they were required as evidence in any existing or contemplated criminal proceeding. It is contended on behalf of the appellants that a slot machine is per se a gambling device, and therefore malum per se, and liable to confiscation in the hands of whomsoever found. The proposition as stated is too broad for this court to adopt in view of the decision in State v. Howell, 83 Mo.App. 198, and the language used by this court in Wagner v. Police Com'rs, 93 Md. 182, 48 A. 455, 52 L. R. A. 775, 86 Am. St. Rep. 423:

"Until it has been shown before the proper tribunal that it was designed to be put, or has been put, to an illegal use, it (a slot machine) cannot be seized as a preventive measure."

It is within the power of the Legislature to make the possession of gambling implements or machines an offense, as was done with regard to policy slips, game at certain seasons, and oysters below a certain size, but it has not thus far done so, and the mere possession of such a device cannot, as the law stands, be deemed and treated in the criminal courts as a violation of law, still less when the question is raised indirectly in the tribunals exercising only a civil jurisdiction. The courts have gone very far in the construction of statutes to extend the inhibition of laws relating to lottery and gambling to slot machines. Such cases as Loiseau v. State, 114 Ala. 34, 22 So. 138, 62 Am St. Rep. 84, Bobel v. People, 173 Ill. 19, 50 N.E. 322, 64 Am. St. Rep. 64, State v. Gaughan, 55 W.Va. 692, 48 S.E. 210, and Territory v. Jones, 14 N.M. 579, 99 P. 338, 20 L. R. A. (N. S.) 239, 20 Ann. Cas. 128, are examples, but in nearly every one of these cases the question arose in a criminal proceeding, and...