*1 Virginia State of West Leo J. Calandros (No. 10654) Submitted. January 1955. March Decided Lovins, President, dissenting.
Robert B. Goodwin, plaintiff in error.
John Fox, G. General, Robert E. Attorney Magnuson, Assistant General, Attorney for defendant in error. Judge: Given, Calandros,
Leo hereinafter as designated defendant, J. indicted, found guilty was tried and in the Circuit Court keeping of Jackson a County, exhibiting gaming having table and an interest a exhibiting table, machine, called a gaming commonly slot and sent- three the jail enced to months in County Jackson fine and costs. On pay petition $200.00 defendant, this of error granted. writ indictment, counts, consisting of four substantially that, November, 1951, charges day the 23rd the de- knowingly fendant did. unlawfully, certain room in the known the “Believe It or Not Restaurant” building Clubroom, in Jackson Ripley, the town Y.F.W. (1) County, Virginia, keep West and exhibit table, machine, machine commonly called slot which slot *2 and is like and similar to called A.B.C. commonly the kind table; (2) have an faro and keno E.O. table and bank table; (3) gaming in and such exhibiting interest keeping in and concerned in and interested and exhibit was keep table, (4) a exhibit exhibiting gaming keep, and keeping exhibiting an and such and have interest table, table, of chance were games which gaming upon in favor of being unequal the chances thereof played, thereof. and exhibitors keepers building
The record discloses that and by Lucy machine was found owned Harlowe was operated leased her to A brother of Panoz by Gene Panoz. a leased and building restaurant in the front portion rear had a license a Clubroom in the operate to V.F.W. building. operated by The club was portion The defendant did not and of the lessee. wife brother have interest in the own, any premises or occupy, possess found. gaming device was where 23,1951, Ripley,
On November the chief West police a of the Department member Virginia, accompanied a city policeman, a sheriff and Safety, deputy Public clubroom, the room under entered the and searched bearing of a date authority search seizure warrant of the During this search November The device gaming discovered. device was gaming taken to the sheriff’s from the clubroom and removed was guilty charge pleaded courthouse. Lessee office fine and costs. paid machine slot operating that he the gaming admitted owned The defendant he had it in the clubroom with placed device club, and with the under- operator consent twenty receive cent per that defendant would standing testified, however, that Defendant gross receipts. used in gaming gambling; device was never intended be that he had placed sign on the front of the device which read, “For Amusement Only”, when the device clubroom; was installed in the and to his knowledge device was a “free game” device.
The gaming table was electrically operated. It could be played for either twenty-five five or cents. After a coin had inserted, been a lever or handle on the center front was “tripped”, which caused three discs or reels in the cab- inet to spin. Each reel had a number pictures figures representing lemons, oranges, cherries, plums, bells, and In win, bars them. order to upon it was necessary that a certain combination of those pictures be in line on the three reels when the reels stopped turning. The device did not pay but a money, winner paid some instances employee the club. after day the seizure of device, defendant, *3 upon request, produced and key unlocked it. It con- tained in nickels and in quarters, a $8.45 total of $14.25 $22.70.
The record indicates that the warrant authorizing the officers to search and seize was originally issued on the 1951, 18th of day August, redated of the 18th of Septem- ber, 1951, and subsequently redated as of the 23rd day of November, 1951.
One of the members of the club testified that she had played the device in question; that she had played both the five cent and the twenty-five cent of device, sides the and had won the twenty-five cent side eight quarters, an paid by employee was of the club. The employee of the club testified that she money to paid persons who won on device; this that she took the money such pur- pose from register the cash bar; behind the that she over- heard a conversation between defendant and the club operator, her employer, to the effect that the device would be installed in the clubroom, and that “they fix would it for amusement only so that there wouldn’t be no harm if anything was done”. of and member Ripley of the
The town mayor that testified Safety prior of Public Department machine, during sometime discovery of the seizure they them as were year, approached conversing, and on a in the town of standing Ripley street to would like to place made statements the effect he establish- or install machines in various business slot exact date of this con- Ripley. ments the town The defendant versation and statements not shown. something he mentioned install- admitted that had about of the De- to and a member mayor slot machines ing at the but that he was Safety, jesting Public partment time. error, assignments
The defendant ten but makes (a) the assignments categories: rejection fall into three evi- improper evidence and the admission proper (c) dence; attorney; (b) argument prosecuting verdict. insufficiency support assignments relative to admission or Four of the alleged illegality are on the rejection of evidence based by officers under which search warrant used made, and the gambling search of where was located. device was
There with reference authority is a conflict by admission of obtained unreasonable testimony Edwards, search In State W. Va. and seizure. Sutter, 71 Va. 76 S. W. admissibility held that the evidence was Court it illegal manner obtained.
affected *4 of Court to the decision this State v. Subsequent Sutter, Edwards, supra, and v. in the case of supra, State 652, 383, 232 U. 58 L. 34 States, v. S. ed. S. United Weeks amendment to the held that fourth 341, it was Ct. the use prevented United States Constitution an search and seizure. through illegal secured case, this Court its changed the Weeks view Following Wills, 659, v. 91 of State W. 114 and held in the cases Va. 720, 114 S. E. Andrews, 91 Va. 261, E. and State v. W. S. 724
257, that the use of evidence obtained through illegal search and seizure warrant violated Constitution. In cases, the Wills and Andrews and testimony informa- tion so obtained, illegally were In the excluded. later Pridemore, 417, cases 756; 93 W. Va. Massie, State v. 233, 95 514; W. 120 E. and State Va. S. Littleton, 494, 713, 108W. 151 Va. S. E. the rule announced in the Wills case was reiterated and approved. But the instant case presents another question. Here search warrant objected to by grounds the defendant on the that it was issued originally on 18th day August, 1951, redated as of the 18th 1951 day September, later 1951, redated as of November, the 23rd day the day of the search. The record made in the instant case indicates that the search warrant sowas dated and redated.
Under the opinion of this Court in the case Pachesa, 102 908, 135 W. it was held that a search and seizure warrant must be executed within a reasonable time from date of its issuance and search and seizure made under such warrant were held be unreasonable. search and seizure warrant in this might governed instance be by the principle stated Pachesa case, and the search and seizure rendered unrea- sonable, by reason of fact that the originally warrant August was dated 1951 and executed on November 1951. But are not we called upon question, decide that since defendant had no here possession, ownership premises control over the searched. decision,
Though point not the language of this Henderson, Court in the case of State v. Va.W. “* ** S. E. is significant, wherein it was said: When warrant offered objected the court did not let go jury. it It is part the record we do not its form or It know contents. been for search to have appears father, evidently and the court took the it view that was trial of defendant. immaterial We do not pass it because is not point, properly raised upon record, out, as hereinbefore but there is pointed respectable
725
constitutional pro
for the
that the
authority
proposition
are
and seizures
against
visions
unreasonable searches
personal;
object
and
accused cannot
to evidence ob
and
against
illegal
tained
him an
search
seizure
690;
property
Flynn,
Ky.
another
Comm. v.
196
person.
443;
Laundy,
State,
4
103 Ore.
Jones v.
Ga. App.
741;
Backus,
551;
S.,
Tsuie Shee v.
243
Anderson
Fed.
v. U.
There is
other
ample
mentioned
See
soundness
the above
principle.
Wolf
1359;United
Colorado,
v.
338U.
93 L.ed.
69 S.Ct.
S.
Walker,
C.C.A.)
481;
States
(2nd
States v.
190F. 2d
United
(3rd
764;
122 F. 2d
Machinery,
C.C.A.)
Schnit
Printing
233;
C.C.A.)
F. 2d
McClannan
States, (8th
77
zer v. United
Jur., Evidence,
1, 116
495;
136
Am.
20
Chaplain,
577;
831;
A.L.R.
134 A.L.R.
88 A.L.R.
§394; Annotations 150
1151;
41 A.L.R.
The instant case is Ct. U. S. 96 L. ed. 72 S. United States v. Jeffers, objecting to in the case defendant in that Jeffers had a to the room searched key use warrant search no here showing to at There is and use it will. permission to such means access any that the had right premises. searched or the to use premises to right had no are of the defendant opinion We that his reason object seizure, to the for the search his right of not violated and constitutional privacy was searched affected, were not rights since the of a third property possssion person. seized were to the of error relative admission assignments The other refusal of the court relate to the rejection testify to whether the clubroom was a witness permit it was public private whether general open jury of the court to instruct clubroom; the refusal police Ripley, the statement chief disregard defendant; by the the action to law violations relative testify officers to as to allowing police certain the court of gambling devices; operation in admitting the evi- *6 dence relative to defendant, conversation the between the mayor former of and a Ripley, of the member Department Safety. Public We have examined these assignments error and the record relating to them. We find no in prejudicial error any of the particulars complained by the defendant herein to the as other assignments of relating error to the admission and rejection of evidence.
In his opening closing arguments, prosecuting the attorney misquoted ref- the evidence the with witness erence to' what was said the the defendant when ma- chine placed VI, in the clubroom. Rule Rules of Prac- tice for Trial Courts, Va., LXII, 116 W. far page so as “* * * * * * pertinent, reads as may follows: Counsel * * the misquote evidence court, in ruling on defendant’s the re- objection marks of prosecuting attorney, said: “Gentlemen of the jury, you are judges of the and you will decide what was said. You are the tryers the facts.” Certainly, prosecuting attorneys, counsel, as other well should practice follow rules of for prescribed them in making arguments Shores, to the juries. State 31 W. 491, S. E. 413.
After a careful examination language of the of the prosecuting record, attorney appearing and the thereon, court’s action see no we reversible error. We the action disapprove prosecuting attorney in instance, judgment but do not we reverse the of the reason, for trial court that since no prejudicial error re- sulted.
We
come
controlling
now
this case.
question
Is the
evidence sufficient
sustain
The de-
the verdict?
prosecuted
fendant
statute:
violating
following
“Any
keep
gaming table,
wlm shall
or
person
exhibit
or
table,
bank,
called
E.O.
or faro
or
commonly
A.B.C.
table, or
keno
device of
any
gaming
other
table or
like
denomination,
kind,
name,
under
or
has no
any
whether
game, table,
bank or device be played with
cards,
otherwise,
or
dice
or shall
abe partner, or concerned
in interest,
table,
exhibiting
bank or
character,
device
any
shall
guilty
be
of a mis-
* *
Code,
*”.
demeanor
For
61-10-1.
a discussion and
application
statute,
Dawson,
see State v.
117 W. Va.
253;
Cambria
Bachmann,
93 W. Va.
The record discloses that the defendant .had no control owner, as an otherwise, lessor or occupied club; that had he no control over operation device; device gambling would not pay money to a directly winner; that employee who paid money to certain machine persons playing agent was not an *7 defendant, but of the the operator clubroom; that the defendant cautioned operator the of the clubroom that the device was to be for used amusement The only. argues State that defendant, such caution the and the of a the placing notice on “For saying device Amusement Only”, merely constituted to effort or scheme conceal intended, the illegal only use device. The witness testifying respect any to such evil intention of defend- ant, it” only suppose testified to effect that “I for purpose misleading, people, the State or officers. A of a is not supposition witness sufficient to convict. We therefore, must, not necessarily conclude that there is record that sufficient evidence in the to show defendant used, or authorized knew that the device was to be or was used, being gambling purposes. Though defendant’s connection this device to may give with rise suspicion, suspicion, even that is not strong sufficient to support Beall, v. 189, 569; verdict. State 98 W. Va. 126 E.S. State 140, 657; White, v. 88 Chafin, 78 W. Va. S. 66 45, W. 66 E. 20. Va.
In prosecutions criminal in this it jurisdiction, is to that the is duty guilty by State show convincing evidence so as to establish his guilt beyond Campbell, reasonable doubt. v. 115 State W. Va. 174 797; v. Scurlock, 263; S. E. State 99 W. 130 S. E. E. 241. Since the 481, 123 S. Dudley, 96 W. Va.
State verdict, error for the it was does not sustain a motion to set aside verdict. court to overrule trial Hudson, 37 S. E. 2d it is 128 W. Va. In State v. case, ain criminal guilty “A verdict of which held: it, be set aside support to will sufficient evidence without Davis, court.” See State W. Va. appellate 2d indicted, Code, under defendant was The statute which offense for to or 61-10-1, any person keep it an makes in interest in or exhibit, or be concerned exhibit- table, commonly called A.B.C. E.O. ing gaming “a or bank, table, any or other gaming or faro or keno table denomination, or kind, any of like under table or device ** noted, has no name *”. before the indictment As counts, charging four each against defendant contained of. language of an offense in the statute. commission however, evidence, does establish that the device table, an “A.B.C. or faro either or E.O. question was other or device bank, table, any or keno table * * is referred to question kind The device of like being similar to “slot machine” or testimony in the bandit”; cannot but we assume that a “one armed those are “like kind” to named statute. devices possibly could be used or The mere fact that device does not make it of “like kind”. The gambling, adapted table or establish burden was *8 one condemned proceeding in this was device involved This, think, it not do. did the statute. we Circuit Court of Jack- judgment the Accordingly, aside reversed, jury the verdict of the set County is son a trial. is awarded new Reversed, verdict set aside and defendant new trial. awarded a President, dissenting: Lovins, I my colleagues, utmost deference views With them that reached from the conclusion dissent support in case insufficient verdiot. This clearly record shows that the defendant owned the device and placed it in the Clubroom with the idea of profit from its deriving True, exhibition and use.
device not pay money did directly to the player. Never- it theless, awas typical slot machine with chances in unequal, favor the exhibitor and owner. The de- fendant was to per receive cent of the twenty re- gross ceipts; thus he comes within that Code, part 61-10-1, a as being partner exhibition of the device and con- cerned in interest exhibiting the same.
The statute under which the defendant prosecuted was has a part been for a See years. number of Code 27, Chapter Acts of the 1881. The method of Legislature, operation was such that the chances for the player to win were The unequal. clearly record establishes un- such A equality. game that character be lawfully cannot at played any place. 55 W. Gaughan, Va.
48 E. 210. The statute separation existed before the this State from the In Virginia. Commonwealth the case of The Wyatt, Commonwealth v. Rand. the Court un- had der consideration A similar statute. conviction under upheld the statute there where defendant was with charged using table for playing unlawful game called or “blind-hazard”. “hap-hazard” Dawson, In case of State v. 117 W. Va.
253, the indictment was held bad because of disjunctive allegations. But statute is therein as a valid treated enactment. Court, Dawson,
In a by this subsequent opinion 117 W. 186 S. of conviction was judgment upheld. Court, case, the last cited uses follow- ing “Thus language: primary question before us writ error is the state’s evidence present whether the ‘craps’ was sufficient to establish that table was a table chances, of. game things being equal, all other unequal such keeper, and that chances were in favor of the unequal cases, game, or exhibitor of the required, sustain conviction.”
730 of of the classes one keeps or exhibits person
A who Code, 61-10-1, keeper is in such as defined gaming tables in or is concerned thereof, an interest or has exhibitor them, statute. within terms of the 706, 81 S. E. Henaghan, 73 W. Va. that the conclusion cases justify
The above cited
had is
valid
prosecution
statute under
the defendant
against
enactment,
the acts proved
perview.
clearly
came
within its terms
Court,
says
in
that the evidence is
opinion,
its
all
beyond
guilt
of
sufficient to establish
noted;
certainly
As above
the defendant
doubt.
reasonable
in,
Clubroom,
and was concerned
the device
placed
use,
the extent
in its exhibition and
or had
interest
of
intake. This establishes his
twenty
gross
cent
per
doubt,
should
all
verdict
beyond
reasonable
guilt
Taylor,
this Court. State v.
130W. Va.
by
not be disturbed
S.
2d 549.
42
upheld
a verdict
determining
The rule for
whether
1, syllabus,
in
stated
Pt.
State
tersely
evidence is
217, 185 E. 205. “In
criminal
Bowles,
W.
S.
ground
on the
case, a
not be set aside
guilt
verdict
will
evidence,
evi-
it is
where the state’s
contrary
the guilt
minds of
impartial
dence is sufficient to convince
doubt, though
evi-
a reasonable
beyond
of the accused
in conflict therewith. To
the accused is
dence adduced
ground
on the
guilt
interference with a verdict
warrant
evidence,
court must be convinced
insufficiency
and that con-
manifestly inadequate
that the evidence was
Lewis,
See State v.
has been done.”
injustice
sequent
584,
A similar 119 E. part sylla- where Price, 94 Va.W. guilty “A verdict criminal reads as follows: bus conflicting oral evidence will not be dis- upon case based so clearly preponderates unless the turbed to clearly pas- innocence as indicate of defendant’s favor part other motive sion, improper prejudice * * jury; *10 In the case, instant there is no contravening which shows that the defendant had an interest exhibition and operation of the gaming device found by the officers when they searched the F. V. W. Clubroom at Ripley.
Bearing in mind the well established and time-tried principles stated, above I would affirm judgment the Circuit Court of Jackson County.
Betty Stout R. D. et al. Massie, 10687)
(No. January 18, Submitted 1955. Decided March Haymond, Judge, dissenting. Boone Dawson,
D. Wilbert H. Haynes, appellant. Jr.,
R. J. Thrift, for appellees.