State v. 25 Slot Machines, 14252

• Decision Date: 17 July 1979
• Docket Number: No. 14252,14252
• Citation: 256 S.E.2d 595,163 W.Va. 459
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. 25 SLOT MACHINES.

Page 595

256 S.E.2d 595

163 W.Va. 459

STATE of West Virginia v. 25 SLOT MACHINES.

No. 14252.

Supreme Court of Appeals of West Virginia.

July 17, 1979.

Syllabus by the Court

1. Devices listed in W.Va.Code, 61-10-1 are Prima facie contraband when seized on a warrant alleging use for gaming and may be destroyed without the prior conviction of their owner or owners for using them for gaming. We expressly overrule Pt. 3, Syllabus, Woods v. Cottrell, 55 W.Va. 476, 47 S.E. 275 (1904).

2. Before a gambling device may be destroyed under Code, 61-10-1 notice must be given to those in whose possession the device was found, and hearing given anyone who appears and claims ownership. The possessor must prove by a preponderance of the evidence that the device was being kept or exhibited innocently, not for gambling purposes. If no one appears to vouch its purity or if those who do appear do not carry their burden of proof the device may be destroyed.

Chauncey H. Browning, Atty. Gen., Richard L. Gottlieb, Asst. Atty. Gen., Charleston, for P. E.

Carl N. Frankovitch, Frankovitch & Anetakis, Weirton, for D. E.

HARSHBARGER, Justice:

On September 7, 1977, twenty-five slot machines were seized at four fraternal organizations in Brooke County. ¹ On September 29, the State petitioned the circuit court of that county for authority to destroy the machines under W.Va.Code, 61-10-1. The petition alleged that the State did not know who owned them. The machines had benevolent friends who employed counsel for them. Acting upon his advice they admitted that the State did not have sufficient information to ascertain ownership. However, the machines would or could not divulge who owned them. The State moved to strike the reply because the mechanisms lacked standing to contest their own destruction. ²

The circuit court in memorandum stated that "because the person who kept or exhibited the slot machines is not made a party to the petition, this Court has no right to order destruction." The memorandum concluded: "By this opinion the Court does not mean to intimate that slot machines are not contraband in and of themselves. Nevertheless, the interest of justice, it would appear, would require the State to bring a proceeding for authority to destroy against the parties who kept or exhibit (sic) the slot machines." This memorandum was incorporated into a March 15, 1978 order that dismissed the petition because the court lacked jurisdiction to order the twenty-five slot machines destroyed. The State appeals.

The only issue is whether our statute permits destruction of gaming devices without the prior conviction of those who owned them, for using them for gaming.

W.Va.Code, 61-10-1 states:

Any person who shall keep or exhibit a gaming table, commonly called A. B. C. or E. O. table, or faro bank, or keno table, or any slot machine, multiple coin console machine, multiple coin console slot machine or device in the nature of a slot machine, or any other gaming table or device of like kind, under any denomination, or which has no name, whether the game, table, bank, machine or device be played with cards, dice or otherwise, or shall be a partner, or concerned in interest, in keeping or exhibiting such table, bank, machine or gaming device of any character, shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not less than two nor more than twelve months and be fined not less than one hundred nor more than one thousand dollars. Any such table, faro bank, machine or gaming device, and all money staked, or exhibited to allure persons to bet at such table, or upon such gaming device, may be seized by order of a court, or under the warrant of a justice, and the money so seized shall be forfeited to the county and paid into the treasury of the county in which such seizure is made, and the table, faro bank, machine or gaming device shall be completely destroyed: Provided, however, that the provisions of this section shall not extend to coin-operated nonpayout machines with free play feature or to automatic weighing, measuring, musical and vending machines which are so constructed as to give a certain uniform and fair return in value or services for each coin deposited therein and in which there is no element of chance.

Counsel for the "slots" argues that the machines cannot be destroyed unless their owners are first convicted under the statute, relying in part upon Woods v. Cottrell, 55 W.Va. 476, 47 S.E. 275 (1904), where this Court held that under Section 1, c. 151, Code 1899, (now Code, 61-10-1), whether a gaming table could be destroyed depended upon the guilt or innocence of the accused owner. ³

Though the thing be plainly an instrument of gaming under the statute, yet, if its owner be acquitted of using it for that purpose, it cannot be destroyed, as it is only instruments actually used and kept for gaming that are thus condemned to destruction. 55 W.Va. at 480, 47 S.E. at 277.

In State v. Dawson, 117 W.Va. 125, 184 S.E. 253 (1936), we invalidated an indictment under Code, 61-10-1 because of its form and said:

In the light of the disposition made of the case upon the conviction of the accused, the questions raised with reference to that part of the order of judgment which deals with the destruction of the property seized under the search warrant need not be discussed at length. The destruction of the seized property could have been ordered by the court only upon the theory that it was justified by the conviction of the accused. When that conviction is set aside, necessarily, the order of judgment fails with respect to the destruction of the property also. 117 W.Va. at 132, 184 S.E. at 256.

To the same effect is Cambria v. Bachmann, 93 W.Va. 463, 118 S.E. 336 (1923).

We disagree with these cases insofar as they compel prior conviction of one accused of keeping or exhibiting slot machines before the machines can be destroyed. Nothing in the statute even implies such a proposition. See, Smith v. One Super Wild Cat Console Machine, 10 Or.App. 587, 500 P.2d 498 (1972), where the court noted that although a prior conviction was required before forfeiture could take place at common law, the...