State v. Derry
| Decision Date | 07 October 1908 |
| Docket Number | No. 21,164.,21,164. |
| Citation | 85 N.E. 765,171 Ind. 18 |
| Parties | STATE v. DERRY. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Orange County; Thos. B. Buskirk, Judge.
Proceedings by the state against Thomas G. Derry for an order for the destruction of gaming devices. From a judgment overruling the motion, the state appeals. Dismissed.James Bingham, E. M. White, A. G. Cavins. H. M. Dowling, and Geo. W. McMahan, for the State. W. H. Talbott, for appellee.
On July 3, 1906, on an affidavit filed before a justice of the peace of Paoli township, charging that certain named articles of gaming apparatus were being used in a specified building for unlawful gaming, a search warrant was issued to the constable, who, under the writ, seized and brought before the justice 34 slot machines, 10 roulette tables, 3 Klondike tables, 3 faro tables, 6 poker tables, 1 West Baden Club table, 1 keno outfit, 2 packages of chips, and $588 cash found in the slot machines-all of which articles, as alleged by the state and admitted by appellee, Derry, belonged to the latter. The justice at once turned said things over to the sheriff of the county. On the same day, to wit, July 3, 1906, an affidavit was filed before said justice charging appellee and another with keeping all of said articles for unlawful purposes; and appellee was arrested on said charge and gave bond for his appearance for trial. July 31st the venue of the prosecution was changed to a justice of Orangeville township, and while there pending without trial the state, by the Attorney General, filed before said last-named justice a petition and motion for an order for the destruction of said seized property. Appellee and one Charles were made parties to the petition to destroy, and, after notice, appellee appeared and filed a plea in abatement. Trial by the justice resulted in an order to the sheriff to completely destroy the seized property, except the cash, which he was ordered to turn over to appellee, Derry, as the owner. The cause was then appealed to the circuit court, where, upon a hearing, the court overruled the state's motion to destroy, and ordered that the property remain in the hands of the sheriff until disposed of according to law, and that the cash be delivered to Derry. The state's motion for a new trial, because the decision was not sustained by sufficient evidence and was contrary to law, was overruled, and the state appeals.
At the outset we encounter appellee's motion to dismiss the appeal, because among other reasons, the ruling appealed from was not a final judgment, and hence not appealable. The vital question in the case is whether, under our statutes, the articles described in the petition to destroy were kept for gaming purposes or permitted to be used for unlawful gaming. The right to destroy depended wholly upon a solution of this question. The Attorney General proceeds upon the theory that the articles in controversy-obviously gaming devices-are noxious per se, and therefore, under legal condemnation and being in the custody of the law, should be destroyed without further evidence. It is alleged in the petition that all of said articles are gaming devices, and were found in the possession of the defendant, Thomas G. Derry, who claimed to be, and was in fact, the owner thereof; that Derry had been charged with keeping and exhibiting said articles contrary to the laws of Indiana, and was under bond for trial on said charge, but as yet had not been tried thereon. “Wherefore,” it is concluded, “the state of Indiana, petitioner herein, charges that said articles and things are gaming devices, and as such should be completely destroyed by the sheriff of Orange county,” and a prayer for such an order is made. It is nowhere charged in the petition that the things were kept, or used, for unlawful gaming, or for any other illegal purpose. If the statute required, which we think it does not, the filing of a formal petition disclosing a legal right to destroy the property, we should be compelled to hold the one before us insufficient.
It is enough to suggest that by the fundamental law no one may be deprived of anything the law recognized as property without notice and an opportunity to defend it. There are, however, some things, having a commercial value, which from their very nature are under legal condemnation, or outlawry, and which the law pursues, rather than protects, because of their pernicious effect upon the public health and morals; for instance, counterfeit money, obscene pictures, vile books, and the like. Such things are regarded by the law as mala per se, because there is no condition or circumstances under which they may come to the possession or attention of the individual without tending to the corruption and prejudice of the public morals and welfare. Such articles cannot be kept, used, or exhibited for any useful or innocent purpose. Burglars' tools and counterfeiting apparatus are generally put in the same class. Being inherently evil, no absolute dominion or property right can exist in them, and, outside the statute, courts have authority, under their police powers, to destroy them for the protection of society. State v. Robbins, 124 Ind. 308, 24 N. E. 978, 8 L. R. A. 438;Spaulding v. Preston, 21 Vt. 9, 50 Am. Dec. 68;Commonwealth v. Coffee, 9 Gray (Mass.) 140;Police Com'rs v. Wagner, 93 Md. 182, 48 Atl. 455, 52 L. R. A. 775, 86 Am. St. Rep. 423. “There are other articles,” says Justice Mitchell, in State v. Robbins, 124 Ind. 313, 24 N. E. 980, 8 L. R. A. 438,
The articles involved in this appeal are described as slot machines, variously named tables, and chips. All these articles are suitable for, and may be employed in, unlawful gaming. There are many other things, as playing cards, billiard tables, and even race horses, that are suitable, and are often used, as gambling devices. According to the testimony of the state's witness on this case, all the articles in the possession of the sheriff are also fit, and may be used, for innocent and harmless amusement-for household furniture and other lawful and beneficial purposes. The ownership, possession, and use of such things are not prohibited by law. Their manufacture is not forbidden. They are treated as ordinary articles of merchandise, may be stored in warehouses, exposed to sale, purchased and used in the family or hall as furniture, for innocent amusement, kept as curiosities, and for all other purposes but unlawful gaming. None of the articles mentioned are innately vicious, as lascivious books and pictures. Being capable of two uses-one lawful and the other unlawful-neither ministerial officers nor courts can upon mere view deprive them of their characteristics as property and put them under legal condemnation. Such a proceeding would be clearly unconstitutional. See Cooley's Const. Lim. (7th Ed.) 431; State v. Robbins, 124 Ind. 308, 24 N. E. 978, 8 L. R. A. 438;Wagner v. Upshur, 95 Md. 519, 52 Atl. 509, 93 Am. St. Rep. 412;Lowrey v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420;Sullivan v. Oneida, 61 Ill. 242;Daniels v. Homer, 139 N. C. 219, 51 S. E. 992, 3 L. R. A. (N. S.) 997;Woods v. Cottrell, 55 W. Va. 476, 47 S. E. 275, 65 L. R. A. 616, 104 Am. St. Rep. 1004; 20 Cyc. p. 920. It is the use or employment of such things as a means of accomplishing unlawful acts, and not the things themselves, that the law condemns. The statute clearly proceeds on this theory.
It is provided by section 565 of the public offense law of 1905 (Acts 1905, p. 718, c. 169) that “whoever keeps, or exhibits, for gain, or to win money, or other property, any gaming table, gambling apparatus or device for the purpose of betting or gaming, or allows the same to be used for any such purpose, shall on conviction be fined,” etc. The statute was enacted in 1881. Acts 1881, p. 114, c. 36. It was reviewed and interpreted by this court (see State v. Robbins, supra) in 1890, 15 years before the Legislature readopted the section in identical terms in 1905, presumably intending that the same shall be administered in the sense attributed to it by this court in the...
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