*1 Albright v. Muncrief. 2d 426 176 W. S.
4-7248 November 1943. delivered Opinion *2 Vesey appellant. $ Murphy Woocl, John and for P. McIIaney, appellee. Oivens, Ehrman for & by appro- Appellee, August J. 12, 1943, Holt, priate sought two machines. recover action, alleged, complaint, appellants, He in his that members proper the without search and State Police, Arkansasv city place seizure entered his of business the warrant, unlawfully Springs of Hot and seized the machines question, rights in violation of his constitutional “as set in Amendment Amendment forth No. 4 and No. 14 of the the' and in Constitution of United art. 2, § States of the State of Arkansas.” He the further Constitution alleged that the machines were not to seizure. Appellants, denied* in their that were with- answer, power question the machines in out alleged to seize and further time of the
that at the machines were seizure, gambling devices and used as therefore were sub- ject There to seizure and confiscation. was a trial before agreed upon finding an statement of and facts court appellee judgment appeal on all issues. and This followed. by stipulated plain-
The facts as counsel are: “The Springs, resident Arkansas, tiff is a of Hot owns and operates business at 316 Avenue, Ouachita city Springs, print- of Hot that said Arkansas; ing tape were establishment located two ticker ma- there tape by machines These ticker were connected chines. Telegraph system; with the wires Western Union direct tape plaintiff ticker received over said that machines in- concerning running of horse races at the formation operating different race tracks several United plain- running prior races of said that to the States; tape information machines over said ticker tiff received horses, concerning the names is, said races—that by weight jockeys, carried the names of on each and the odds the tracks, the condition of horses, relayed in- plaintiff, said direct wire, that horse; Springs, city places of Hot to various formation places commonly ‘bookies,’ as known more betting places public operated where conducted places operators said on the at were received bets supplied concerning information which the horse races given; the run- after said ticker plaintiff receive over the ning would races the of said tapes would im- results of said races, said ticker mediately direct wire to the furnish that plaintiff places; that knew that the said mentioned above *3 operation using this information ‘bookies’ were of their business. primarily ticker machines were used
“The said two places obtaining to be furnished to said plaintiff did also furnish mentioned. However, above daily newspaper published in information to a the same Springs, and also used said information' Arkansas, Hot printing for the cir- in his business concerning paid races. Plaintiff was handbills culars and furnishing information. fo.r ticker machines were seized the time said infor-
“At relating to horse races at the received mation concerning in the United States different tracks track the names of the win- entries in said races, odds, placed ning showed; that and the horses horses, machines were seized there were two the time said at relaying places operators the information to the various by telephone beginning direct wire, mentioned above to the condition of the track, the information jockeys, the names of with a etc., in each horses race, information until the races had been line of continuous showing leading completed were which horses at the quarter, at the stretch and at of each the half, the'.end relayed by operators so these two The information race. places posted was received in the above mentioned and on a entries, blackboard so that customers could see the places speaker and in some of the a loud etc., odds, to, used announce to the customers all of the information so received the ticker machines.
“The two machines 'in this involved action by agents, deputies, seized their defendants, day seizing August, the said 7th officers them purporting authority to act under and virtue of the copy and seizure search of which is attached warrant, part and made a hereof. hereto The warrant attached complete proceedings hereto constitutes record of had in connection with the issuance of said warrant. No affi- probalde davit of cause was filed with exhibited to the justice peace issuing copy said warrant. No of said plaintiff. receipt warrant was left with the property No given taken was to him. The seized county was removed the defendants from G-arland headquarters and was taken to the Police State in Pu- county, present laski and is at the time held Arkansas, place. at said At the time suit was no return had filed, seizing been made on said warrant the officers Springs, property. municipal has a Hot Arkansas, court created Act No. of the Acts of 1917. plaintiff up
“The was not and charged until the arrested, present time has not been arrested or with the violation of law whatsoever.
“The machines n whichwere seized are ordinary tele- *4 graph designed purpose receiving instruments for the of telegraphic transcribing wire and same. The machines seized this case are no different from any telegraph other ticker and machine, the machines may to the court as be exhibited evidence. any gambling
“No of kind was carried on in the premises occupied plaintiff and which the machines plaintiff op seized were located. does not own or any gambling erate establishments and has whatsoever, airy gambling except no connection establishments, paid plain stated. The as hereinbefore consideration payment his customers is in tiff information fur fixed amount is a certain thereof amount nislied and the any upon depend- or failure success and does not conducted'by his customers. business plaintiff in- operation his business “In the patronize his public generally and to come vited the seized were printing the machines the time At business. operation, the door printing was in business liis place plaintiff’s of business Avenue to Ouachita open, operated; the officers and his business without the machines aiid to in the front door walked question not physical were machines use of force. The general, public and or to the visible from the street occupied apart separate from that were in a room by his establishment.” question presented is: Were
The first gambling devices and on the facts, seizure and forfeiture? It must conceded that the be
n gambling per however, follow, se. It does not devices, gambling under our devices, would not become gambling purposes. when used for statutes, Pope’s Digest, ou law of our criminal Section 3320, person “Every up, keep gaming provides: set who shall any gambling gaming or or com- device, exhibit table monly rouge et or noir, E. 0., roulette, called A. B. C., any gambling any gaming or faro or other table bank, any of the like or similar or kind, or bank device, description although the name other not herein be named, may, adapted, de- what it or devised, denomination playing any game purpose signed of chance any money lost, be won or or at which guilty etc.” shall be deemed of misdemeanor, “Every Pope’s provides: per- Digest, Section directly or in- . . . shall be son who directly, interested, setting up any running or in house, any exhibiting gambling device or either devices, money furnishing articles or other for. guilty
carrying shall deemed house, felony, shall be confined on conviction thereof, of a
324 year penitentiary than one nor for not less
in the state years.” more than three justices duty of the it the of the makes
Section 3327 knowledge, given peace, own or on their on information suspect, ground they to where have reasonable or directing- peace officer, to some issue their warrant gaming- de- tables or warrant a search for such such and direct- mentioned or referred vices hereinbefore to, publicly any ing finding- shall be such, that, executing the warrant. the officer burned judges provides: the several “The § .And of the in their construction courts this state shall, liberally, prohibiting gaming, construe the same statutes evading- pen- preventing persons with view alty by changings the invention or name, law, that now are or hereafter of new names or devices, practice gaming, brought into and all kinds of general description shall be so con- and all terms of games have effect and include all such strued as to specially and in all when devices as are not named, cases, necessary pro- is it shall be favor of construction ’’ against the offender. hibition court in Ark. Harrison, 1189, 13 This Fox v. S. W. place operated pur 2d held in effect that a for the 808, betting- gambling- pose permitting on horse races although dog racing. the issue in that case was house, Albright p............., et al. v. 176 S. also, Karston, ante, See, day supra, 2d decided. makes Section W. directly indirectly by every person interested furnish “any operation ing- of a articles” house, Pope’s guilty felony, Digest, of a and under §§ 2934-5, anyone assists or abets another in the who commis aids, accessory, principal an sion of a becomes of crime, punishment as such. fender, appellee operated, facts disclose that in his Here, city place Springs, of Hot of business two Through these machines. there was trans- large telegraph, from a number of race tracks mitted, throughout the United on horse races States, being run on the various tracks. information re- *6 the by contained appellee, machines, these over ceived horses of the numbers and names of the announcement weights, each on jockeys the odds their the entered, progress the horses starting of the races, the of the horse, came This and the the track around winners. by question of means appellee the machines over spelled out the tape was on which a ticker report mechanism, operators, appellee’s sat who the race so that reports, as received read these at each machine, one telephone, mouthpiece tape, which aof into the place appellee’s of busi- direct wire connected Springs, gambling in Hot houses ness to the various reports thereby as giving instantaneous to each house reports re- gambling so these each house, received. In operator at appellee, announced ceived from were telephone, a receiving over in most cases, end of gambling- speaker of the customers loud to the assembled large placed upon all to for a blackboard house, by appellee teletype were used machines observe. These upon primarily bets which furnish this information gambling or “bookie” houses, were to the various made, Appellee, they are sometimes called. establishments, paid use made he knew the this service and for gambling he was which the information houses of furnishing machines. them from the appel- that facts, on the admitted We think it clear, deliberately machines converted these lee had thereby converting purpose, them use and to an unlawful into designed” “adapted, gambling devised devices playing game is, of chance, for money betting which at races, on horse property rights might all therefore, be won or and, lost, were were forfeited in these machines by appellants. these use to which machines to seizure prin- pay, knowingly put appellee, was the operation present, cipal modern most factor gambling he the serv- houses to which furnished various present physically appellee with the was not ice. While gambling question, we houses, in each of constructively .present with these he was think gambling operation abetting of these aiding- and through equally houses the use of the machines and was guilty, along operators felony. with the houses, question generally
. “The who is liable for . . . maintaining obviously . . de- houses . pends upon wording particular in- statute (24 Jurisprudence, 44.) volved. Amer. § 428,
In v. 86 Ark. 111 W. L. Sanders, 454, 19 S. State R. N.A., this court S. “A device an said: instrumentality playing game upon of a money may instrumentality be lost or and the is not won; *7 necessarily solely gambling purposes. intended for 14 Eng. Cyc. Am. & gambling Enc. 20 882-4. Law, 684-5; Certain purpose,
devices cannot
for
be used
other
designed
they may
when
and,
for that
be
alone,
’
destroyed
‘burning
under the
statutes. Garland Nov. Co.
may
State,
v.
gambling
And in the Lawton v. Steele case, considering in validity Court the United States, taking prohibiting the York State New of ail act summary authorizing the waters fish from certain talcing fish devices nets and other destruction police power) (the is uni- “It said: violation of the act, everything to versally to essential include conceded justify de- safety, to public morals, aiid health, summary proceedings,^ of or abatement, struction public . may regarded . nuisance. . as a whatever undoubtedly possessed the legislature, however, only prohibit fishing in these power, nets to not n waters, to take such make a criminal offense, but to necessary prevent to were reasonable and measures certainly could do in the future. It such offenses effectually by destroying of the the means than more detri- nets were used a manner If the offense. public, think of the we it was mental to interests legislature power to them be declare within authorize the officers of the state and to nuisances, person property is . . . Nor whose abate them. remedy. question legal without his seized under act has used violation of the his been fact, If, may just complain; reason to if he he has no act, not, seizing replevy his nets from officer ifor, them, n destroyed, have his action for their have been ’’ *8 value. Supreme in
The Court of Illinois Bri Glennon v. purpose N. E. held: “The 155 Ill. of the ton, stop practice the is to unlawful and immoral statute destroying theory implements with it is carried on. the which The respect property any to the is no that one is longer it. it The moment is used in un the owner the although to it is liable and business, forfeiture, lawful greater appear right he and claim has no in owner it, person. . than other . so used . For the general promotion welfare the its under state, right adopt police power, the undoubted has most- inexpensive, expeditious, and effective mode of abolish ing abating the same.” and our lawmakers have made
As clear under indicated, they supra, is which have that it their enacted, the laws gambling suppress in this state intention to all unlicensed and have in all end directed that cases court, necessary, gambling wherein construction of statutes are adopt shall “shall be favor of that construction which' prohibition against and the offender.” that trial court was conclude, therefore, . We holding question that the machines in error and and were not devices to seizure confiscation. remaining question presented appel- Did is: authority have
lants to seize and confiscate the machines question upon a search and seizure which warrant, supported was not an affidavit? the facts we On here, scope authority think within the their making the and could acted seizure, have in the instant case a search and seizure without warrant. says
Appellee, appellee op- in his brief: “owns and printing city erates a commercial establishment in the Springs, engaged general He Hot Arkansas. is in the adjunct printing business. As an to said he business, operates sports telegraphic service. For this ” printing shop he in his maintains two machines.
Appellants, members of the State Police, walked into appellee’s place of and business, went unmolested to, appellee operating seized machines, at the adjoining time in a room his business. When were seized, “information was received relating to horse races at the different tracks in the concerning United States entries in said races, track winning the names odds, and the horses horses, placed operators relay- that There showed. were two ing places the information to the various . . . awith line of information continuous until the races had been completed.” appellee It clear, therefore, aiding abetting these use of operation committing of the various houses and *9 felony presence these officers. The put by machines appellee view use to which were meaning were devices within the of our to statute were confiscation the state
329 appellants authorities. clothed In these circumstances, were authority appellee with the to arrest and seize being confiscate the since the crime machines, presence. committed in their
Appellee
complain
cannot
that no arrest was made
at the
right
Appellants
time of the search and seizure.
had the
along
with the
arrest,
search and
but
seizure,
right
validity
to search and the
of the seizure did not
depend
appellee
on the arrest of
when the search and
seizure were made. In State v. District Court, etc., Galla
County,
tin
(Supreme
This in Van Hook court, v. Helena, 170 Ark. 282 1083, quoting approval S. Boyd after W. from v. United States, U. S. 616, S. Ct. 29 L. Ed. 746, protection said: “The of the search and seizure clause of entry the Constitution does not extend to the of an officer public place upon probable into a to make an arrest cause that an pro unlawful act is committed there. The applies, premises tection property, only not to all but dwelling private places.” houses or other such appellee’s We fail to on the facts find, here, that rights constitutional have been invaded. For the errors judgment is reversed and indicated, the cause re- proceed with directions to manded, a manner consistent opinion. with this J., concurs.
Smith, participate. did not J., McHaney, respectfully (dissenting). I dissent J., Robins, majority opinion in this case. agree I cannot that these located part in a room which was of Muncrief’s office, Certainly they devices. were not made for They merely .gaming. typewriters operated by are remote telegraph control over wires. instruments Such are to be *10 330 many every nearly telegraph in news- and office
found in paper involved herein The machines establishments. any gambling in house. not use found received over these machines Muncrief tracks run at the various about horse races doing in- no law. This In so he violated United States. ways: it he transmitted he used in three First, formation gambling Springs; he second, Hot houses in to certain city; newspaper he in that and, third, transmitted it to a concerning the which races, used it in handbills public. state could the statute of this he sold to Under up mentioned uses of either of the two last it be said that by teletyped illegal. In this news made Muncrief forbidding receiving legislation trans- absence outlawing racing mitting of information about horse information, such devices which receive and transmit teletype my opinion, these machines were not, to seizure and destruction. only right officers enforc
The case which ing against gambling to machine has laws seize passed appellate is re been an court that In Super. Teletype de Pa. 191 Atl. Machines, 633, 210, 126 Pennsylvania superior In cided in 1937. court of appeared that case that such a machine was seized “bookmaking” in a The trial officers establishment. gambling device, court ordered its as a but destruction judgment supreme was reversed court, authority (citing held the definition of a given by supreme court Arkansas -the device case Ark. Sanders, 86 of State v. 111 S. W. 454, 913) L. N. that machine was not a S., R. A., gambling device. far as been
So I have able no court of discover, gambling- ever last resort has before condemned-as a gambling, an instrument not made for used device gamble and not- in a located house. on, agree requirement
Nor can the constitutional I (§ Arkansas) art. II of Constitution of that a maybe only issued on oath or affirmation search warrant may properly legislature, one that the courts, disregard. issuance of warrants and the seiz- The search private property con- ure and destruction thereunder of summary, highly penal procedure. stitute a drastic, requirement in the that someone should Constitution pro- make an oath or affirmation as basis such a *11 safeguard ceeding is one. It is a valuable of a reasonable my rights, judgment, the citizen’s and a sane and is, proper upon might limitation without what, it, become dangerously power. abused lawfully
“A search warrant cannot issued unless grounds supported it is based are oath or complaining party.” affirmation of the Am. 519. Jur. may “Before a valid search warrant issue must there application be an therefor under oath or affirmation proper showing probable form cause for the of issuance the warrant.” 56 C. J. 1211. suppression important.
The is is But it important maintaining pristine more than in all their vigor safeguards those constitutional which our fore- fathers in their wisdom created for us after had bought with sweat and tears” the “blood, to erect ri^ht system for themselves and us a constitutional of free government. principles judicial
The enunciated decisions can- precise not be question limited in their effect to the then determined the court. And I fear that this whit- tling away by judicial rights decision of constitutional praiseworthy of sup- even in the individual, effort to press gambling, day bring some about evils not now up foreseen. A dictator-minded executive, backed might legislature, conceivably submissive use the decision authority destroy plants instant case to raid and “opposition” justify newspapers, oppressive such ground acts on the published that the news or editorials papers judgment in power, were, of those in public harmful and Nothing subversive to welfare. preservation liberty more essential to than freedom press. of the The framers of the Constitution of Arkan- wisely liberty sas press wrote therein: “The of the shall forever remain inviolate. The free communication rights of opinions
thoughts the invaluable is one of and. upheld ought mandate to be This constitutional man.” against form of encroachment. (dissenting). its to reach In order J., McF addin, necessarily majority must of the court conclusion, (1) that the inter alia: find and hold, (2) issued that the warrant devices; were by conformity peace justice with consti holding Regardless requirements. of the other tutional now-speak majority (concerning which am not I points impossible agree ing), to the two above. find it I my present respectfully dissent and views: I Therefore, Gambling Teletype De- Machines Were Not I. The says: agreed statement in this case vices. ordinary which were seized were “The machines designed telegraph of receiv- instruments transcribing ing telegraphic wire *12 in this are no different The machines seized case same. any telegraph the machine, other ticker ma- from to the court as be exhibited evidence. chines any gambling in of kind was carried on the “No by plaintiff occupied premises and in which the machines plaintiff operate The does not own or located. seized were any gambling establishments and has no con- whatsoever, any gambling except as here- establishments, nection inbefore, paid plaintiff by The consideration to stated. payment is in for information furnished his customers is a fixed thereof certain amount and does and the amount any upon depend the success or failure of business- not by his customers.” conducted again: “The said two ticker
And machines were obtaining primarily for information to be furnished used places plaintiff mentioned. the above However, to said daily the same information furnish to a news- did also Springs, published paper Hot in and also used Arkansas, printing in his business for the information said printing concerning and- handbills circulars races. of furnishing paid this information.” Plaintiff plaintiff again: “The is a And .resident Hot operates printing Springs, owns and Arkansas, City of Hot Avenue, 316 Ouachita at business printing establishment Springs, in said That Arkansas. ‘ tape These machines. two ticker were located there tape wire with direct machines were connected ticker system.” Telegraph the Western Union agreed machines two that these Thus, might newspaper any have. office are such machines They print gambling in a located house but some, gambling ing from house. distance office, say Appellants were the the machines gambling we true, If that have “heart of the racket.” be anomaly separated body strange the the the heart from organism. These machines were no more vital to in an gambling (1) than was the the establishment Western Company supplied Telegraph which the informa Union telephone company (2) to the the whose tion to the services were used transmit the (3) to the electric bookmaker, office com possible operation pany made whose current telephone. teletype machine and the Union,' Western instrumentality in the chain for the If one transmission- part gambling be seized as a information can be for each seized; then all can is essential to the racket, transmission of more one is no information, “heart of racket” than is the other. majority giving police
power are destroy teletype not found case power house—that the hands of some —can unscrupulous years destroy come, official used to telephone telegraph newspapers, and other offices, lines, agencies dissemination of information. Under *13 destroying- good gambling intention racket, may creating majority a frankenstein which be will de stroy rights. No court other state —so teletype held such a as I am advised—has machine to far gambling Teletype In device. The case Re be a chine, Ma Super. pro (1937), Atl. 210 533, 191
126 Pa. was a ceeding teletype forfeiture and destruction of a for the been taken under a which had search seizure machine actually that machine was found warrant, teletype gambling Forfeiture of machine house.
334
sought illegal gambling as an but court refused device, saying: its destruction, teletype telegraph
“A machine is a which machine, typewrites telegram message as the is received in- operator requiring stead of an to receive it in the Morse general telegraph code and transcribe it. It is in use operation may and the of its offices, results seen in the be typewritten slips pasted telegraph on a blank when deliv- apparatus ered. It is, no an sense, or article, device, gain money money, to win or thing or at which or other valuable may played upon. for or staked or betted It is a apparatus transmitting conveying machine or or in- for gambling apparatus. not a formation, device or The fact gamblers use the information thus received in purpose making their unlawful business, bets wagers pay wagers, or or to off or collect on such bets or gambling does not transform the into a machine, apparatus, rouge such as roulette device, et wheels, layouts, noir faro wheels of tables, fortune, dice, cards, punch lottery slot boards, ‘numbers’ tickets, slips policy etc.” sheets, Hagerty
In the Coleman, case of v. 133 Fla. 182 363, Supreme So. 776, Court of Florida was asked to telephone destroyed allow a to be because it was found gambling -request in a house, and such was refused be telephone cause a is not a device. In Common Ky. v. wealth Western Tel. Co., Union 112 355, S. W. 59, Rep. telegraph Am. 57 L. R. A. St. com pany charged maintaining a common nuisance because transmitted over its lines bookmaking operate, Kentucky allowed a house to but the persons receiving said court that the fact that the infor illegally telephone mation used it pany did not make the com principle' a violator of the criminal law. The same applies operating here: Muncrief, fur office, newspapers nished information and others; and his fact that some of illegally customers used the information did not make his machines per devices very that the se. The fact information was furnished to newspapers publication for síiows that the ma solely gambling. chine was not used In Garland
335 257,W. Company 138, 71 S. Ark. Novelty v. State, to what speaking this court for Mr. Justice Biddick, in- destroyed here the statute under property be could the seizure authorize not does “The statute said: volved, sim- useful furniture other or of tables and destruction or house, ply in a playing found be because they may other cards be used because n gamesupon permits money de- it but is bet, only made are devices those tables and struction of carrying kept solely purpose a business for of a nuis- our statute, which the law forbids. It under is, publicly operate a machine made ance to solely exhibit Legislature gambling, and the of of authorized abatement has, statute, (cid:127) nuisance of the machine.” destruction “solely” emphasize that
I have italicized the word recognized that Mr. Justice in the case cited, Biddick, destroyed be used before an instrument it must could be “solely” gambling. involved majority, in this case ing allow- so and the used; the destruction of these machines in the case opening at the door that will allow the destruction bar, ill- a vast amount of at the whim some misguided advised aiid officer.
II. The In Question. Constitutional art. II, § provided: right people our it is “The Constitution, persons, papers of this to be State secure in houses, their against and effects unreasonable searches and seizures except shall not be and no warrant issue violated; shall upon probable supported cause, affirmation, oath or particularly describing place and the to be searched and thing
person seized.” be says I call to the that the attention fact Constitution except supported by shall that the warrant not issue agreed or affirmation. The- statement oath of facts says: herein
“The warrant attached hereto constitutes com- plete proceedings had in record connection with the probable of said No affidavit of issuance warrant.. cause issuing filed with or exhibited to the P. said J. war- ’’ rant. *15 In other fur- there no written affidavit words, showing nished the J. and no that oath or affirma- P. keeping tion was ever the made with Constitution. Rights, Article the II of is the Declaration of Constitution attempted and rights that to article there was be asserted the people against Legislatures, of the officers agreed courts could and this case shows not encroach. The statement clearly seizing that the warrant the comply the machines did not with constitutional the. taking wrongful, So the mandates. Muncrief .was seeking prop- now to from recover officials the State erty they wrongfully Appling that from In took him. v. R. State, Ark. 128 S. 28 L. N. S., 548, W. A., held we that where officer served a search warrant, ground the citizen could resist on the that the warrant wrongfully obtained and that no affidavit was made. away In that the court took case, citizen right naturally to resist the that officer, and meant that protection the citizen had some from the court. ma- jority taking away is now from the citizen the ultimate right regain property wrongfully to his that been has together taken from The effect these him. if two cases means an officer with a void search and seizure warrant takes the the citizen can- citizen, not resist the at officer time, cannot later recover property. holding foreign my his Such a is so to ideas rights disagree of citizens that I must and do majority holding good to that effect. Under inten- destroying majority may tion of racket, setting up precedent be tional a that undermines the constitu-
guaranties property. Long . present after the passed long officials have from the scene of after action— joined the writer of this dissent has his ancestors—the holding majority in this case will be cited as precedent justify refusing courts in to allow citizens to property wrongfully recover their taken. There must be stopping point and the time somewhere; has come when ready cry against amI “halt” the encroachments of a government on a citizen. That is the of this dissent.