State Ex Ref. Brett v. Four (4) Bell Fruit Gum Slot Machs.

• Decision Date: 09 October 1945
• Docket Number: Case Number: 31872
• Citation: 162 P.2d 539,196 Okla. 44,1945 OK 261
• Parties: STATE ex ref. BRETT, County Atty. v. FOUR (4) BELL FRUIT GUM SLOT MACHINES et al.
• Court: Oklahoma Supreme Court

1945 OK 261

162 P.2d 539

196 Okla. 44

STATE ex ref. BRETT, County Atty. v. FOUR (4) BELL FRUIT GUM SLOT MACHINES et al.

Case Number: 31872

Supreme Court of Oklahoma

Decided: October 9, 1945

Syllabus

¶0 GAMING-Constitutional provisions not applicable to seizure of slot machines defined as gambling devices.

The seizure of slot machines defined as a gambling device is a proceeding in rem, and being contraband and not capable of ownership or possession in Oklahoma, the provisions of the Federal and State Constitutions relating to searches and seizures and liberty of property are not applicable.

Appeal from District Court, Carter County; John C. Caldwell, Judge.

Forfeiture proceeding by the State ex ref. Rutherford Brett, County Attorney, against Four (4) Bell Fruit Gum Slot Machines et al. From an adverse judgment, relator appeals. Reversed and remanded.

Rutherford Brett, County Atty., and Gerald S. Tebbe, Asst. County Atty., both of Ardmore, for plaintiff in error.

Stephen A. George, of Ardmore, for defendants in error.

BAYLESS, J.

¶1 State of Oklahoma ex ref. Rutherford Brett, county attorney of Carter county, Okla., appeals to this court from an order of the district court of Carter county refusing to forfeit Four (4) Bell Fruit Gum slot machines seized by the sheriff of that county from certain persons in charge of the Commissioned Officers Club and Mess Club rooms in Ardmore, Okla.

¶2 The proceedings for the forfeiture of these slot machines was brought under 21 O.S. 1941 § 964 et seq. It was admitted at the trial that the devices seized were slot machines within the definition of section 964, supra. It likewise was admitted that these machines were in the club rooms where they were played by the members of the club.

¶3 After the seizure of these slot machines and filing of the application to forfeit them, as provided by section 973, the persons in charge of them for the Officers Club filed a motion to quash the illegal seizure. At the time the application for forfeiture came on for hearing the motion to quash was first heard, evidence was offered in support thereof, and this evidence, together with certain stipulations, was considered by the court in rendering judgment finally on the merits. Since this judgment was against forfeiture and was based upon the grounds urged to quash the seizure as well as to resist the application to forfeit, we regard the appeal as being from the order on the merits.

¶4 The court made certain findings which we quote:

"The Court thereupon finds that the Four (4) Bell Fruit Gum Slot Machines seized and involved herein were slot machines as defined by said Section 964, Title 21, Oklahoma Statutes, 1941, and are nuisances per se and as such are ordinarily and under proper conditions and circumstances seizable by peace officers; but in the case at bar the Court finds that the seizure of said equipment and the money contained therein was illegal, the same having been taken and seized in violation of the fourth amendment to the United States Constitution and of Section 30, Article 2 of the Oklahoma Constitution, in that no search warrant or other lawful authority was ever issued by any Court or magistrate of competent jurisdiction authorizing the search for or the seizure of said slot machines and money or either of them.

"The Court further finds that the only evidence on that certain point contended for by respondents, to wit: that the Commissioned Officers Club and Mess of the Ardmore Army Airbase of Ardmore, Oklahoma, is a federal instrumentality, and that such Commissioned Officers Club and Mess, as a part of the War Department of the United States and under authorization therefrom, claims and has a property interest in and to said machines and the contents thereof, to wit: the money seized in connection therewith, indicates that such contention is correct and for that reason the Court find that said machines and contents there of should be returned to the respondent, Major John S. Lorr, as the person lawfully in charge of the Commissioned Officers Club and Mess of Ardmore, Oklahoma; to all of which findings, except the findings as to nuisances per se, the plaintiff and relator except and exceptions are allowed by the Court."

-and made an order in conformity therewith.

¶5 State urges five propositions, to wit (1) that under the statutes governing the proceedings the only question for determination was whether the property seized was slot machines and subject to forfeiture and the court erred in not so finding and adjudging (2) that the seizure of the slot ma chines was proper and authorized by law; (3) that the slot ma. chines were contraband and seizure thereof violated no constitutional rights of the defendants; (4) that contraband property such as this is unlawful to possess in Oklahoma and the court cannot lawfully return the same to the persons from whom it was seized; and (5) the several members of a voluntary association have no individual property right in the property of the association. The club answers these propositions and advances three counter-propositions: (1) That the property was seized in violation of the Federal and...