State v. Calandros, 10654

• Decision Date: 22 March 1955
• Docket Number: No. 10654,10654
• Citation: 86 S.E.2d 242,140 W.Va. 720
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, v. Leo J. CALANDROS.

Page 242

86 S.E.2d 242

140 W.Va. 720

STATE of West Virginia, v. Leo J. CALANDROS.

No. 10654.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1955.

Decided March 22, 1955.

Syllabus by the Court.

A judgment rendered on a verdict of guilt in a criminal case will be reversed, the verdict set aside and defendant granted a new trial where the evidence does not establish the guilt of the defendant beyond all reasonable doubt.

Robert B. Goodwin, Ripley, for plaintiff in error.

John G. Fox, Atty. Gen., Robert E. Magnuson, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Leo J. Calandros, hereinafter designated as defendant, was indicted, tried and found guilty in the Circuit Court of Jackson County, of keeping and exhibiting a gaming table and having an interest in keeping or exhibiting a gaming table, commonly called a slot machine, and sentenced to three months in the jail of Jackson County and to pay a fine of $200 and costs. On the petition of the defendant, this writ of error was granted.

The indictment, consisting of four counts, substantially charges that, on the 23rd day of November, 1951, the defendant did knowingly and unlawfully, in a certain room in the building known as the 'Believe It or Not Restaurant' in the V.F.W. Clubroom, in the town of Ripley, Jackson County, West Virginia, (1) keep and exhibit a gaming table, commonly called a slot machine, which slot machine is like and similar to the kind commonly called A.B.C. and E.O. table and faro bank and keno table; (2) have an interest in keeping and exhibiting such gaming table; (3) keep and exhibit and was concerned in and interested in keeping and exhibiting a gaming table, (4) keep, exhibit and have an interest in keeping and exhibiting such gaming table, upon which table, games of chance were played, the chances thereof being unequal in favor of the keepers and exhibitors thereof.

The record discloses that the building in which the machine was found was owned by Lucy Harlowe and leased by her to Gene Panoz. A brother of Panoz operated a restaurant in the front portion of the leased building and had a license to operate a V.F.W. Clubroom in the rear portion of the building. The club was operated by the brother and wife of the lessee. The defendant did not own, occupy, possess or have any interest in the premises where the gaming device was found.

On November 23, 1951, the chief of police of Ripley, West Virginia, accompanied by a member of the Department of Public Safety, a deputy sheriff and a city policeman, entered the clubroom, and searched the room under authority of a search and seizure warrant bearing date November 23, 1951. During this search of the premises the gaming device was discovered. The gaming device was removed from the clubroom and taken to the sheriff's office in the courthouse. Lessee pleaded guilty to a charge of operating a slot machine and paid a fine and costs.

The defendant admitted that he owned the gaming device and that he had placed it in the clubroom with consent of the operator of such club, and with the understanding that defendant would receive twenty per cent of the gross receipts. Defendant testified, however, that the gaming device was never intended to be used in gambling; that he had placed a sign on the front of the device which read, 'For Amusement Only', when the gaming device was installed in the clubroom; and to his knowledge the device was a 'free game' device.

The gaming table was electrically operated. It could be played for either five or twenty-five cents. After a coin had been inserted, a lever or handle on the center front was 'tripped', which caused three discs or reels in the cabinet to spin. Each reel had a number of pictures or figures representing oranges, lemons, plums, cherries, bells, and bars upon them. In order to win, it was necessary that a certain combination of those pictures be in line on the three reels when the reels stopped turning. The device did not pay money, but a winner was paid in some instances by an employee of the club.

The day after the seizure of the device, the defendant, upon request, produced a key and unlocked it. It contained $8.45 in nickels and $14.25 in quarters, a total of $22.70.

The record indicates that the warrant authorizing the officers to search and seize was originally issued on the 18th day of August, 1951, redated as of the 18th of September, 1951, and subsequently redated as of the 23rd day of November, 1951.

One of the members of the club testified that she had played the device in question; that she had played both the five cent and the twenty-five cent sides of the device, and had won on the twenty-five cent side eight quarters, and was paid by an employee of the club. The employee of the club testified that she paid money to persons who won on this device; that she took the money for such purpose from the cash register behind the bar; that she overheard a conversation between defendant and the club operator, her employer, to the effect that the device would be installed in the clubroom, and that 'they would fix it for amusement only so that there wouldn't be no harm if anything was done'.

The mayor of the town of Ripley and a member of the Department of Public Safety testified that prior to the discovery and seizure of the machine, sometime during the year, 1951, defendant approached them as they were standing on a street in the town of Ripley conversing, and made statements to the effect that he would like to place or install slot machines in the various business establishments in the town of Ripley. The exact date of this conversation and statements is not shown. The defendant admitted that he had mentioned something about installing slot machines to the mayor and a member of the Department of Public Safety, but that he was jesting at the time.

The defendant makes ten assignments of error, but such assignments fall into three categories: (a) the rejection of proper evidence and the admission of improper evidence; (b) the argument of the prosecuting attorney; (c) insufficiency of the evidence to support the verdict.

Four of the assignments relative to the admission or rejection of evidence are based on the alleged illegality of the search warrant used by the officers under which the search of the premises was made, and where the gambling device was located.

There is a conflict of authority with reference to the admission of testimony obtained by an unreasonable search and seizure. In State v. Edwards, 51 W.Va. 220, 41 S.E. 429, 59 L.R.A. 465, and State v. Sutter, 71 W.Va. 371, 76 S.E. 811, 43 LR.A.,N.S., 399, this Court held that the admissibility of evidence was not affected by the illegal manner by which it was obtained. Subsequent to the decision of this Court in State v. Edwards, supra, and State v. Sutter, supra, in the case of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, it was held that the fourth amendment to the Constitution of the United States prevented the use of evidence secured through an illegal search and seizure. Following the Weeks case, this Court changed its view and held in the cases of State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A.L.R. 1398, and State v. Andrews, 91 W.Va. 720, 114 S.E. 257, that the use of evidence obtained through an illegal search and seizure warrant violated the Constitution. In the Wills and Andrews cases, the testimony and information so illegally obtained, were excluded. In the later cases of State v. Pridemore, 93 W.Va. 417, 116 S.E. 756; State v. Massie, 95 W.Va. 233, 120 S.E. 514; and State v. Littleton, 108 W.Va. 494, 151 S.E. 713, the rule announced in the Wills case was reiterated and approved. But the instant case presents another question. Here the search warrant is objected to by the defendant on the grounds that it was issued origianlly on the 18th day of August, 1951, redated as of the 18th day of September, 1951 and lated redated as of the 23rd day of November, 1951, the day of the search. The record made in the instant case indicates that the search warrant was so dated and redated.

Under the opinion of this Court in the case of State v. Pachesa, 102 W.Va. 607, 135 S.E. 908, it was held that a search and seizure warrant must be executed within a reasonable time from the date of its issuance and a search and seizure made under such warrant were held to be unreasonable. The search and seizure warrant in this instance might be governed by the principle stated in the Pachesa case, and the search and seizure rendered unreasonable, by reason of the fact that the warrant originally was dated August 18, 1951 and executed on November 23, 1951. But we are not called upon to decide that question, since the defendant here had no possession, ownership or control over the premises searched.

Though not a point of decision, the language of this Court in the case of State v. Henderson, 103 W.Va. 361, 137 S.E. 749, 751, is significant, wherein it was said: '* * * When the warrant was offered defendant objected and the court did not let it go to the jury. It is not a part of the record and we do not know its form or contents. It appears to have been for a search of the premises of the father, and the court evidently took the view that it was immaterial on the trial of the defendant. We do not pass upon the point, because it is not properly raised by this record, as hereinbefore pointed out, but there is respectable authority for the proposition that the constitutional provisions against unreasoanble searches and seizures are personal; and the accused cannot object to evidence obtained against him by an illegal search and seizure of the property of another person. Com. v. Flynn, 196 Ky. 690, 245 S.W. 503; State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290; Jones v. State, 4 Ga.App. 741, 61 S.E. 133; Tsuie Shee v. Backus, 9 Cir., 243 F. 551; Anderson v. U. S., 8 Cir., 273 F. 20.'

There is ample authority in other jurisdictions to...