State v. Robbins

• Citation: 24 N.E. 978,124 Ind. 308
• Decision Date: 07 June 1890
• Docket Number: 15,107
• Parties: The State v. Robbins
• Court: Supreme Court of Indiana

24 N.E. 978

124 Ind. 308

The State v. Robbins

No. 15,107

Supreme Court of Indiana

June 7, 1890

From the Cass Circuit Court.

The judgment is affirmed.

L. T Michener, Attorney General, J. W. McGreevey, Prosecuting Attorney, D. H. Chase and J. H. Gillett, for the State.

OPINION

Mitchell, J.

Upon information of the prosecuting attorney within and for the county of Cass, Sydney Robbins was arrested upon the charge of unlawfully keeping and exhibiting for gain, and for the purpose of winning money thereon, a roulette table and wheel and a faro table and box for dealing cards, contrary to the provisions of section 2086, R. S. 1881.

The sheriff took the defendant into custody upon a warrant, upon which the officer made return, among other things, that he had seized one faro table complete, and one roulette table complete, adding that he had seized the devices above named on sight, while a game was in progress. The defendant appeared in court on the 10th day of May, 1889, and pleaded guilty, and a fine of $ 25 was assessed against him. Afterwards, on the 27th day of May, 1889, the prosecuting attorney moved the court for an order directing the sheriff to destroy the gaming apparatus or devices theretofore seized and remaining in the possession of the officer. Thereupon Robbins appeared and moved the court for an order directing the sheriff to return the property to him. The court overruled the motion of the prosecutor, and ordered that the property be returned to the owner. From these several rulings this appeal is prosecuted by the State.

It is provided in section 2086, in substance, that whoever keeps or exhibits for gain, or to win or gain money, any gaming table or any apparatus, device, or machine of any kind or description, for the purpose of betting or gaming, shall be fined, etc. Provision is made in the code regulating criminal procedure, whereby upon proper affidavit justices of the peace are authorized to issue warrants to search any house or place for, among many other things, "any gaming table, establishment, device, or apparatus kept or exhibited for the purpose of unlawful gaming," etc. It is provided when the warrant is executed by the seizure of the property or things described therein, that the property or things shall be delivered by the justice to the sheriff, to be securely held by him "subject to the order of the court trying the offender," and upon conviction of the person offending, the sheriff shall forthwith destroy, or cause to be destroyed, the apparatus, devices, etc., used for unlawful purposes; and as to all other property, "he shall, after such conviction, deliver the same, under the order of the court trying the offender, to the proper owner thereof."

On behalf of the State it is insisted that it was the duty of the court to order the destruction of the gaming devices, for the unlawful keeping and exhibition of which the owner had been convicted, and which had been taken by the sheriff, in whose custody they remained.

We have no doubt of the authority of a sheriff, or other officer authorized to make arrests, to seize articles which he knows, or has good reason to believe, are being employed in violating the criminal law, or as instruments for the commission of crime. Things which may supply evidence of an offence of which one has been accused may be taken into the possession of the officer making the arrest, to be disposed of under the direction of the court. 1 Bishop Crim. Proc., sections 210, 211. An officer has no authority to take money from the person of a prisoner, or to take from him any other property or thing, unless it is in some way connected with the crime with the commission of which he is charged, or unless it renders his arrest or detention hazardous, or might facilitate his escape. It is not only the right, but it is the duty of every peace officer to seize any property or thing that is being used in the commission of crime, or in the violation of law enacted for the protection of the health, morals and welfare of the community. Spalding v. Preston, 21 Vt. 9.

The gaming devices in question having been lawfully seized and taken into the possession of the sheriff, they were as properly subject to the order of the court trying the offender as they would have been in case they had been seized by a constable armed with a search warrant, and afterwards turned over to the sheriff. The statute authorizing the issuance of search warrants was designed as a means of discovering and securing possession by the officers of the law of articles or things the use or exhibition of which was immoral and unlawful.

If without resorting to the statute, the proper officer of the court obtained possession of the articles, or things, used in the commission of a crime, in some other manner equally lawful and legitimate, the jurisdiction of the court over the subject would be the same as if it had been first taken by a search warrant, and turned over to the sheriff. In other words, so far as the court has jurisdiction over the property or thing, its jurisdiction depends upon the fact that the apparatus shall be properly in the custody of the sheriff, when the offender is before the court for trial, and not that he shall have obtained the custody by means of a search warrant. The material part of the statute in...