Wagner v. Upshur

• Decision Date: 19 June 1902
• Citation: 52 A. 509,95 Md. 519
• Parties: WAGNER v. UPSHUR et al.
• Court: Maryland Court of Appeals

52 A. 509

95 Md. 519

WAGNER v. UPSHUR et al.

Court of Appeals of Maryland

June 19, 1902

Appeal from superior court of Baltimore city; George M. Sharp Judge.

Replevin by Henry Wagner against George M. Upshur and others. From a judgment for defendants, plaintiff appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE SCHMUCKER, and JONES, JJ.

Gans & Haman and W. Calvin Chestnut, for appellant.

Alonzo L. Miles, for appellees.

FOWLER J.

This is the second appeal in this case. The first will be found reported in the case of Police Com'rs v. Wagner, 93 Md. 190, 48 A. 455, 52 L.R.A. 775. In the case just cited it is said, Page, J., delivering the opinion: "This is an action of replevin to recover a musical slot machine. The third plea is that the article is a gambling device or instrument, intended and designed to be used by the plaintiff and others in violation of the gambling laws of the state which can be put to no legitimate use, and was detained by the defendants, in the discharge of their official duty, to prevent such violation, and to be used, if necessary, as evidence against the plaintiff. To this plea, the plaintiff replied that at the time the machine was taken 'there was no charge pending against the plaintiff for any violation of the gambling laws of this or any other state; that the plaintiff was not arrested, nor has he since been arrested nor any warrant issued for his arrest, on any such charge nor has any such charge been preferred against him; and that the said machine was not taken and retained by the defendants for use as evidence against any other person.' " The defendants demurred to this replication, but their demurrer was overruled, and, the judgment being for the plaintiff, the defendants appealed. We held, on the appeal, in 93 Md., 48 Atl., and 52 L.R.A., that articles which are designed to be used in violation of the criminal law, and which can be used for no legitimate purpose, may be summarily seized by the police authorities under a statutory power to prevent crime; and the seizure of such articles is not taking of property without due process of law within the constitutional inhibition. We therefore reversed the judgment in the first case, and remanded for new trial. Upon the second trial, the plaintiff amended his replication to the third plea, and replied as follows: "That the 'musical slot machine' mentioned in the declaration was not a gambling device or instrument, intended or designed to be used by the plaintiff and others in violation of the gambling laws of the state, which could be put to no legitimate use, but, on the contrary, said machine was a lawful instrument, and capable of being put to many legitimate uses and purposes." In other respects, the amended replication is the same as in the former appeal. At the conclusion of the evidence, the plaintiff offered two prayers, and the defendants demurred to the evidence, and asked the court to take the case from the jury. The court refused the prayers of both sides, and ruled as follows: "If the court finds that the machine seized by the defendants, and replevied in this case by the plaintiff, was a machine for gambling, and was used or intended to be used by the plaintiff as such, contrary to the laws of this state, the verdict must be for the defendants, though the court may further find that the said machine had devices attached by which it could be used as a music box, or to register the number of customers, or a merchandise machine as described by the witness Michael, or in other innocent ways, if the court finds said devices were attached to said machine fraudulently, for the purpose of evading the laws of this state against gambling machines, and that said machine was intended to be, and was, used mainly as a machine for gambling, though it may have been occasionally used for other purposes mentioned for the purpose of evading the laws of this state...