Opinion
No. 32766.
June 7, 1937.
1. GAMING.
The mere possession of a slot machine or even its operation for amusement and not for profit does not constitute a crime (Code 1930, section 821).
2. GAMING.
A city marshal had no authority, without affidavit or search warrant, to seize slot machine which was not operated by person keeping it, since statute does not contemplate that officers may seize property not contraband without a warrant, unless such property is being used by persons in such manner as to make out a crime (Code 1930, sections 821, 966).
3. REPLEVIN.
An owner of a slot machine which was kept on premises of another not for purpose of operating it could replevy such machine from city marshal who, while searching premises for intoxicating liquors, found machine and without taking out any legal papers or making any affidavit took the machine into his possession, where marshal could not show that machine was being used for purpose of gaming (Code 1930, sections 821, 966).
APPEAL from the circuit court of Scott county. HON. D.M. ANDERSON, Judge.
Colbert Dudley, of Forest, for appellant.
It is undisputed that H.B. McCrory, appellee here, obtained possession of the slot machine involved in this action during a search of the premises occupied by Mrs. Thelma Mathiston, under authority of a search warrant issued for the search of these premises for intoxicating liquor. We submit the case of Cofer v. State, 118 So. 613, is controlling in this case.
The possession of a slot machine is not per se a violation of the law.
Rawls v. State, 12 So. 584; Section 821, Code of 1930.
It is undisputed that the machine in controversy was the property of appellant, T.R. King. That replevin will lie for the recovery or possession of property unlawfully seized by an officer is well settled.
54 C.J. 434; Duboff v. Haslan, 182 N.Y.S. 896; In re Massey, 56 Kan. 120, 42 P. 365.
We respectfully submit that the whole transaction having its very inception in an unlawful and unjustifiable seizure and being bad ab initio cannot have its character changed any more than a leopard can change its spots. Of course the defendant testified at length of a confession or admission said by him to have been made by the person in whose possession the machine was found, but we might as soon expect him to come to court without his pants and pistol as to expect him to come without such testimony.
Frank F. Mize, of Forest, for appellee.
In our opinion the facts in this case place it squarely within the provisions of section 966 of the 1930 Code, and the officers had the authority, and it was their duty, to seize this machine and destroy it as provided for in said section.
Counsel for the appellant cited the case of Cofer v. State, 118 So. 613, as controlling in this case. We think that case not applicable to the case at bar for the Cofer case states that it was Cofer's premises searched, while in this case, the premises searched and the premises in which the machine was found belonged to one Mrs. Alexander, over which premises the appellant had no control, no interest in, nor right to. Hence he cannot complain.
In the case of Polk v. State, 142 So. 480, this court held that persons not owners of premises searched could not complain of evidence obtained against them by illegal search.
The admitted facts show beyond any doubt that money was exhibited by said machine for the purpose of betting or alluring persons to bet at the game, and we submit that the money and the gambling device were properly seized by the officers and should be destroyed as provided for by section 966 of 1930 Code. We respectfully submit that this case should be affirmed.
Appellant, T.R. King, brought an action in replevin against H.B. McCrory, appellee, for the unlawful taking and detention of a slot machine.
It was alleged in the affidavit that this slot machine was taken from appellant within a thirty-day period, and it was further alleged that McCrory gave bond under the statute in such cases, but when the constable went to take the machine, instead of delivering it to King, he took the bond of the defendant for it. The case was tried in a justice of the peace court where judgment was rendered for King. McCrory appealed to the circuit court where the case was tried, and verdict rendered in favor of McCrory, from which this appeal is prosecuted.
It appears from the evidence that McCrory, who was city day marshal of Forest, and also another, who acted as night watchman, secured a warrant to search the premises of Mrs. Alexander, who operated a small store, for intoxicating liquor. Mrs. Alexander, with her daughter, Mrs. Goodwin, had living quarters attached to a part of the store, separated by a doorway. This search, as stated, was made by McCrory for the purpose of looking for intoxicating liquors, and in searching through the premises he found a slot machine in the dining and cook room, one room serving for both purposes, and that without taking out any legal papers, or making any affidavit, when no crime was being committed in his presence, said McCrory took the slot machine into his possession. It further appeared from the evidence that T.R. King was the owner of the slot machine, having purchased it from one Harris in Newton, Miss., and had taken it to the residence of Mrs. Alexander, asking her daughter to keep it for him. T.R. King testified that she was not to operate the machine, and that he had the key to the compartments where the cash was deposited — the cash that ordinarily went to the owner — but that there was no cash box in the machine. Harris testified that he had the cash box and had never delivered it to King. It was also shown in the testimony that the slot part of the machine was not sealed so as to prevent coins being deposited, and that the machine had what is called a "jack pot" into which went coins, about 40 per cent. of the deposits, the rest going into what is called a "chute," and that it was estimated that the public got about 40 per cent. of the money deposited. When the machine was seized, it does not appear that there was any money in it except a nickle and some metal tokens in the jack pot.
Both McCrory and his assistant testified that Mrs. Goodwin stated to them that the tokens in the machine would be redeemed in the store. Mrs. Goodwin denied this statement, and testified that she was not operating the machine, and that she had been instructed not to operate it.
There was no proof that the machine was being operated by any person during this period. As stated, the machine was not kept in the store, but there was no "door shutter" between the store and the cook room, and McCrory stated that while in the store he saw the machine, and that it was possible for other persons to see it and go into the cook room and operate the machine.
In the absence of proof, we do not think it can be assumed that persons visiting the store entered or went into the cook room and dining room for the purpose of operating this slot machine, and that the proof offered was sufficient to show any actual operation of the machine while it was kept there. Section 821, Code 1930, while denouncing the operation of a slot machine, does not denounce the mere possession of one, or make such possession a crime. Here, as stated, there was no proof of the actual operation of the machine, nor is the testimony sufficient to show that it was operated in a manner to make its possession a crime.
It seems to have been the idea of the marshal in seizing the machine that its possession was criminal, and that he had authority, under section 966, Code 1930, to seize and destroy the machine. As stated in the case of State v. Stigler (Miss.), 175 So. 194, this day decided, mere possession of a machine, or even its operation for amusement and not for profit, does not constitute a crime, and, as stated, the machine in this case was not operated by the persons keeping it. The marshal had no legal authority to seize it without an affidavit or search warrant. Section 966, Code 1930, does not contemplate that officers may seize property, not contraband, without a warrant, unless such property is being used by persons in such manner as to make out a crime. Consequently, the machine in the case at bar was not in custodia legis of McCrory, and, under the facts, an action of replevin would lie against him for the unlawful taking and detention of the property, since he could not show that it was being used for the purpose of gaming.
The plaintiff, King, requested and was refused a peremptory instruction. Under the facts as shown this instruction should have been granted.
The judgment of the court below will be reversed, and judgment rendered here for the restoration of the property, and the cause will be remanded for the assessment of damages against the appellee, McCrory, for the unlawful seizure and detention of the property.
Reversed and remanded.