171 Ind. 18 | Ind. | 1908
On July 3, 1906, on an affidavit filed before a justice of the peace of Paoli township, charging that certain named articles of gaming apparatus were being used in a specified building for unlawful gaming, a search-warrant was issued to the constable, who, under the writ, seized and brought before the justice thirty-four slot-machines, ten roulette tables, three Klondike tables, three faro tables, six poker-tables, one West Baden club table, one keno outfit, two packages of chips and $588.85 cash, found in the slot-machines — all of which articles, as alleged by the State and admitted by appellee, belonged to the latter. The justice at once turned said articles over to the sheriff of the county. On the same day an affidavit was filed before said justice charging appellee and another with keeping all of
At the outset we encounter appellee’s motion to dismiss the appeal, because, among other reasons, the ruling appealed from was not a final judgment, and hence no.t appeal-able.
The Attorney-General proceeds upon the theory that the articles in controversy — obviously gaming devices — are noxious 'per se, and therefore under legal condemnation, and, being in the custody of the law, should be destroyed without further evidence.
It is alleged in the petition that all of said articles are gaming devices, and were found in the possession of the defendant, who claimed to be, apd who was in fact, the owner
2. It is enough to suggest that by the fundamental law no one may be deprived of anything the law recognizes as property without notice and an opportunity to defend. There are, however, some things, having a com-
mercial value, which, from their very nature, are under legal condemnation, and which the law pursues, rather than protects, because of their pernicious effect upon the public health and morals; for instance, counterfeit money, obscene pictures, vile boobs, and the like. Such things are regarded by the law as mala per se, because there is no condition or circumstance under which they may come to the possession or attention of the individual without tending to the corruption and prejudice of the public morals and welfare. Such articles cannot be kept, used or exhibited for any useful or innocent purpose. Burglars’ tools and counterfeiting apparatus are generally put in the same class. Being inherently evil, no absolute dominion or property right can exist in them, and, outside the statute, courts have authority, under their police powers, to destroy them for the protection of society. State v. Robbins (1890), 124 Ind. 308, 8 L. R. A. 438; Spalding v. Preston (1848), 21 Vt. 9, 50 Am. Dec. 68; Commonwealth
The articles involved in this appeal are described as slot-machines, variously named tables and chips. All these articles are suitable for, and may be employed in, unlawful gaming. There are many other things, as playing-cards, billiard-tables, and even race-horses, that are suitable, and are often used, as gambling devices. According to the testimony of the State’s witness in this case, all the articles in the possession of the sheriff are also fit, and may be used, for innocent and harmless amusement, for household furniture, and for other lawful and beneficial purposes. The ownership, possession and use of such things are not prohibited by law. Their manufacture is not' forbidden. They are treated as ordinary articles of merchandise, may be stored in warehouses, exposed for sale, purchased and used in the family or hall as furniture, may be used for innocent amusement, kept as curiosities and used for purposes
5. The same principle runs through the search-warrant statute which forms the basis of this proceeding. This statute is sustained under the federal Constitution (4th Amendment), forbidding unreasonable search and seizure, only as a necessary means in the suppression of crime and the detection and punishment of criminals, and is required to be cautiously framed and strictly construed. Neither at common law, nor under the statute, is such process available to individuals in the course of civil proceedings, nor for the maintenance of any mere private right. It may only be invoked in the furtherance of public prosecutions. Robinson v. Richardson (1859), 13 Gray (Mass.) 454; Lippman v. People (1898), 175 Ill. 101, 51 N. E. 872; 25 Am. and Eng. Ency. Law (2d ed.), 145.. It is apparent that the legislature had this view of the subject when it enacted the following: “Justices of the peace may issue warrants to search any house or place: * * * Fourth. For any gaming table, establishment, device or apparatus hept for the purpose of unlawful gaming, or to win or gain money or other property.”. Acts 1905, p. 584, §56, §1923 Burns 1908.
A justice of the peace has no right arbitrarily to issue the warrant here provided. He must require a prima facie case to be made by some responsible person before he has any power-to authorize the invasion of private property. Section fifty-seven of last-named act (§1924 Burns 1908) provides: “No warrant for search shall be issued until there is filed with the justice an affidavit, particularly describing the house or place to be searched and the things to be searched for, and alleging substantially the offense in relation thereto.”
By these statutes we note: (1) That the property in controversy could have been legally seized by a search-war
The innocent possession and proper ^use of the articles were under the protection of the law; and to justify the search and seizure, their unlawful use, actual or designed, must be alleged and shown by the State. So in the final disposition of the goods in controversy, their use, before the seizure, becomes the pivotal question for decision by a court that has authority to determine fully and finally whether said articles had been kept for illegal purposes — in other words, a court of criminal jurisdiction, with power to enforce the penalty if guilty, and to restore the property to the owner if innocently held. Wagner v. Upshur, supra; 25 Am. and Eng. Ency. Law (2d ed.), 146.
The Attorney-General relies on the act of 1907 (Acts 1907, . p. 661, §§1926-1928 Burns 1908), which act amends sections fifty-nine' and sixty of the act of 1905, supra, and adds a new section on the same subject.
By this new and amendatory legislation two things were clearly intended: (1) That no one’s property shall be destroyed in a search-warrant proceeding until the owner, or person in possession, shall have notice and an opportunity to be heard in contesting t|ie ground on which the destruction is claimed; and (2) that a proceeding in the nature of a libel against the property seized may be maintained by the State, and the legal status of the articles finally determined in a proceeding separate and distinct from a prosecution against the owner, charged with keeping the articles for unlawful gaming. Indeed, we perceive no reason why .a judgment of condemnation may not bfe rendered against the seized articles, without stopping to inquire whether a prosecution has been commenced against the person who tainted the property by subjecting it to improper use. In such a proceeding it is not material who kept the articles, or was misusing them. The fact that they are gaming devices, and, when seized, are. being used or kept for unlawful gaming, is sufficient to send them under the sheriff's ax. In this proceeding it was the duty of the court on the hearing to ascertain and definitely decide whether the articles in the hands of the sheriff were, when seized, being used or kept for illegal purposes, and if the finding was in the affirmative to order the things destroyed, and if in the negative to order their restoration to the owner or person in possession, and thus put an end to the controversy.
In Elliott, App. Proc., §83, it is said: “No order is final in such a sense as to constitute a final judgipent .unless it disposes of the main case so far as there is power in the trial court to decide upon the questions presented by the issues, no matter how clearly and decisively the order may indicate what the ultimate judgment will be. Until there is an ultimate judgment the case is not finally disposed of.”
“An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order.” Pfeiffer v. Crane, supra. And see Home, etc., Power Co. v. Globe Tissue Paper Co. (1896), 145 Ind. 174.
The order or judgment appealed from is in these words: “It is therefore considered and adjudged by the court that the State of Indiana’s petition and motion to destroy the gambling devices, in said petition described, be overruled, and that the property in question remain in the custody of the sheriff of Orange county, in the State of Indiana, until ordered destroyed by due course of law. It is further considered and adjudged by the court that the money in question, to wit, the sum of $588.85, now in the hands of the sheriff of Orange county, in the State of Indiana, and taken from the slot-machines, alleged to be the property of the defendant, Thomas G. Derry, is the property of said Thomas G-. Derry, and said sheriff is ordered and directed to turn the same over to said Thomas G. Derry.”
It will be noted that the order does not pretend to make a final disposition of the ease. There is no order for the destruction of the property, and none for its return to the owner. The order left the status of the controverted property precisely as it was before the hearing. In effect it amounts to an interlocutory order of postponement of the question. The power to decide whether the property had been forfeited implies judicial discretion, and also the power
With respect to the slot-machines and gaming tables, it is clear that the order.concerning them was not final orappealable. In regard to the cash, there arose no question. The State alleged in its petition and proved on the trial that the money found in the slot-machines was the property of appellee. Appellee claimed the same thing. In respect to the money, there was no controversy. The State had no claim upon it and no right to confiscate it. There was nothing- for the court to do with it- but to turn it over to the owner. No question concerning it can therefore arise on this appeal.
We think the judgment appealed from is not final, and that this appeal should be dismissed.
Appeal dismissed.