State v. McNichols , 63 Idaho 100 ( 1941 )

Respondent was charged and convicted of the crime of "willfully, unlawfully and knowingly permit [permitting] to be played and conducted in a house owned by him, the said James E. McNichols, to-wit: a place known as the Shamrock Club, a game of chance, to-wit: cards, dice, slot machines and roulette, for money, checks and credit * * *." The devices were duly seized under a search warrant and thereafter and subsequent to respondent's conviction, were, by the District Court, ordered destroyed under the provisions of Section 17-2304 I. C. A. The money found in the devices after seizure, was deposited with the county treasurer by the sheriff. This cause was previously before this Court upon a motion to dismiss the appeal and will be found reported in62 Idaho 616, 115 P.2d 104, to which reference may be had for a more complete statement of the facts.

Respondent McNichols was convicted in the Probate Court of the offense above charged. Judgment was imposed, from which he appealed to the District Court. The cause coming on for hearing, he moved to dismiss the appeal, which motion was granted, whereupon he filed a motion in said court, that an order be made for the return to him of the money found in the gambling devices, which motion was duly granted and an order entered to that effect, from which order this appeal is prosecuted.

There is but one question here for determination, namely, did the trial court err in making and entering its order directing that the money found in the gambling devices be returned to respondent.

Appellant contends that the money found in the gambling devices constituted an integral and necessary part of such devices and that respondent was not entitled to have the same returned to him for the reason that the money found in the gambling devices was subject to seizure and confiscation as a component part of the apparatus or instrumentality used in the illegal gambling operation.

While, upon the other hand, respondent contends that the money in question was his property; that it was in the custody of the Court to be used as evidence in the cause; that, upon a dismissal thereof, being no longer necessary for that purpose, he was entitled to have the same returned to him.

Under the great weight of authority money deposited in gambling devices is clearly such an integral part of such devices as to become an integral part thereof; and such devices cannot be carried away without taking the money therein.

In Dorrell v. Clark, (Mont.) 4 P.2d 712, the Court uses the following language which is applicable to the facts in the instant case:

"It is first apparent that the sheriff did not wrongfully seize the money in question. The statute authorized him to seize the slot machines in operation. It is clear from the record and from the nature of the devices seized that the money was within the mechanism of the slot machines and was not disclosed until the order for their destruction was obeyed. Clearly, these were what is known as "money machines" and were operated by placing a coin in a slot and manipulating a lever; when the coin became a part of the device for operating the machine and if, perchance, the operator was lucky, it released other coins from the internal workings of the machine and expelled them therefrom. Under such circumstances the coins and all of them, were as much a part of the gambling device as was the lever, or dials, or slot; the machine could not be operated without their use, and the machines, as they were when seized by the sheriff, could not "pay" except for the coins therein. When, therefore, the sheriff carried away the machines as he found them, he committed no trespass — he but performed a duty imposed upon him. * * * * so far as the taking is concerned,the money was clearly such an integral part of the machines asthat the machines could not be carried away without taking themoney." (Italics ours.) To the same effect see the following cases. Fairmount Engine Co. v. Montgomery County, 5 A.2d 419, (Pa.); Rosen v. Superintendent of Police, (Pa.) 181 A. 797;Kenny v. Wachenfeld, (N.J.) 184 A. 737; Pa. Quart. Sess., 2 Fay. L. J.

It has been held, and correctly so, that the owner or possessor of premises on which slot machines used for gambling have been installed, is not entitled to a return of money found in such slot machines and deposited with the court upon their seizure and destruction under statutory authority. Had the legislature intended, as in Montana and possibly other States, to permit owners, operators, or individuals, to retrieve moneys deposited in gambling devices, it would have so provided. The sole purpose of the enactment of anti-gambling statutes is to prohibit gambling, not to minimize or encourage it.

While it will be conceded that the money found in the gambling devices cannot be lawfully destroyed (Dorrell v.Clark, supra.) it does not follow that the seizure of the money in the instant case was unlawful or that respondent was, or is, entitled to have it returned to him. Its disposition is provided for under Section 19-4802 I. C. A., which provides:

"Whenever any money shall be or shall come into the possession of any clerk of court, or other public officer authorized to receive the same, and no fund is specified by law into which such money shall be paid, or purpose to which the same shall be applied, the officer in possession of, or who may come into the possession of any money in such cases, shall pay the same to the state treasurer who shall add the same to the permanent school fund, and such money shall thereafter be and remain a part of said fund."

The rule is well established that slot machines, like other gambling devices, are not property (Mullen v. Moseley, 13 Idaho 457,90 P. 986; 121 A.S.R. 237; 12 L.R.A. (N.S.) 394.), but contraband subject to seizure and summary destruction. Section 17-2304, I. C. A. Money found in gambling devices is likewise subject to seizure along with the devices, apparatus or instrumentalities, when the circumstances are such that it is clearly apparent that it formed an integral part of the illegal gambling operation. Rosen v. Superintendent of Police,supra.

The officers committed no trespass in seizing the gambling devices and the money contained therein. The money being an integral part thereof, and coming lawfully into the possession of such public officers who were authorized to receive the same under the provisions of Section 19-4802 I. C. A., it was their duty to pay the same to the state treasurer and upon the receipt thereof, it was the duty of such treasurer to add the money so received to the permanent school fund.

The order of the trial court returning the money to respondent is reversed, and it is so ordered. Costs to appellant.

GIVENS and AILSHIE, JJ., concur.