The State v. Derry
| Decision Date | 07 October 1908 |
| Docket Number | 21,164 |
| Citation | 85 N.E. 765,171 Ind. 18 |
| Parties | The State of Indiana v. Derry |
| Court | Indiana Supreme Court |
From Orange Circuit Court; Thomas B. Buskirk, Judge.
Prosecution by The State of Indiana against Thomas G. Derry. From an order relegating certain seized articles to the custody of the sheriff, the State appeals.
Appeal dismissed.
James Bingham, Attorney-General, Edward M. White, H. M. Dowling, A G. Cavins and George W. McMahan, for the State.
George Shirts and Will 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 thirty-four slot-machines, ten roulette tables, three Klondike tables, three faro tables, six poker tables, one West Baden club table, one keno outfit, two packages of chips and $ 588.85 cash, found in the slot-machines--all of which articles, as alleged by the State and admitted by appellee belonged to the latter. The justice at once turned said articles over to the sheriff of the county. On the same day 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 31, the venue of the prosecution was changed to a justice of the peace of Orangeville township, and while there pending trial the State, by the Attorney-General, filed before said last-named justice a petition for an order for the destruction of said seized articles. Appellee and one Charles were made parties to the petition to destroy, and, after notice, appellee appeared and filed a plea in abatement. The trial resulted in an order to the sheriff completely to destroy the seized articles, except the cash, which he was ordered to turn over to appellee as the owner. The cause was then appealed to the circuit court, where the State's motion to destroy was overruled, and it was ordered that the articles 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, who claimed to be, and who was in fact, the owner thereof; that the defendant 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 alleged in the petition that the articles 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 recognizes as property without notice and an opportunity to defend. There are, however, some things, having a commercial value, which, from their very nature, are under legal condemnation, 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 circumstance 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 (1890), 124 Ind. 308, 8 L.R.A. 438, 24 N.E. 978; Spalding v. Preston (1848), 21 Vt. 9, 50 Am. Dec. 68; Commonwealth v. Coffee (1857), 9 Gray 139; Board, etc., v. Wagner (1901), 93 Md. 182, 48 A. 455, 52 L.R.A. 775, 86 Am. St. 423.
"There are other articles," says Mitchell, J., in State v. Robbins, supra,
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 in 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 for 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 for sale, purchased and used in the family or hall as furniture, may be used for innocent amusement, kept as curiosities and used for purposes other than 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, Const. Lim. (7th ed.), 431; State v. Robbins, supra; Wagner v. Upshur (1902), 95 Md. 519, 52 A. 509; Lowry v. Rainwater (1879), 70 Mo. 152, 35 Am. Rep. 420; Sullivan v. City of Oneida (1871), 61 Ill. 242; Daniels v. Homer (1905), 139 N.C. 219, 51 S.E. 992, 3 L.R.A. (N.S.) 997; Woods v. Cottrell (1904), 55 W.Va. 476, 47 S.E. 275, 65 L.R.A. 616, 104 Am. St. 1004; 20 Cyc., 920.
It is the use of such articles as a means of accomplishing unlawful acts, and not the articles themselves, that the law condemns. The statute clearly proceeds on this theory. It is provided by section 565 of the public offenses act of 1905 (Acts 1905, pp. 584, 718, § 2474 Burns 1908) that "whoever keeps or exhibits for gain, or to win or gain money or other property, any gaming table, * * * gambling apparatus, device, table or machine * * * 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 (§ 2086 R. S. 1881). It was reviewed and interpreted by this court (State v. Robbins, supra) in 1890, fifteen years before the legislature readopted the section in identically the same terms by the act of 1905, supra, presumably intending that the same shall be administered in the sense attributed to it by this court in the case of State v. Robbins, supra. It is expressly recognized in the case just cited that such articles as we have under consideration may be possessed, owned and enjoyed as property, within the limitations imposed by the statute. "In many instances," says the court, "property may, or may not, exist in a thing, according to the use to which it is or may be applied, or the purpose for which it is kept or exhibited."
The same principle runs through the search-warrant statute which forms the basis of this proceeding. This statute is sustained under the federal Constitution (4th Amendment), forbidding unreasonable search and seizure, only as a necessary means in the suppression of crime and the detection and punishment of criminals, and...
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In re Dissenting
...of which was not necessarily unlawful, and only became unlawful when such articles were used for purposes forbidden by law. In State v. Derry, supra, the consisted of slot machines, tables and other articles seized as gambling apparatus under a search warrant issued upon an affidavit chargi......
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...of which was not necessarily unlawful, and only became unlawful when such articles were used for purposes forbidden by law. In State v. Derry, supra, property consisted of slot machines, tables and other articles seized as gambling apparatus under a search warrant issued upon an affidavit c......
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