Upon information of the prosecuting attorney within and for the county of Cass, Sydney Robbins was arrested upon the charge of unlawfully keeping and exhibiting for gain, and for the purpose of winning money thereon, a roulette table and wheel, and a faro table and box for dealing cards, contrary to the provisions of section 2086, R. S. 1881.
The sheriff took the defendant into custody upon a warrant, upon which the officer made return, among other things, that he had seized one faro table complete, and one roulette table complete, adding that he had seized the devices above named on sight, while a game was in progress. The defendant appeared in court on the 10th day of May, 1889, and pleaded guilty, and a fine of $25 was assessed against him. Afterwards, on the 27th day of May, 1889, the prosecuting attorney moved the court for an order directing the sheriff to destroy the gaming apparatus or devices theretofore seized
It is provided in section 2086, in substance, that whoever keeps or exhibits for gain, or to win or gain money, any gaming table, or any apparatus, device, or machine of any kind or description, for the purpose of betting or gaming, shall be fined, etc. Provision is made in the code regulating criminal procedure, whereby upon proper affidavit justices of the peace are authorized to issue warrants to search any house or place for, among many other things, “ any gaming table, establishment, device, or apparatus kept or exhibited for the purpose of unlawful gaming,” etc. It is provided when the warrant is executed by the seizure of the property or things described therein, that the property or things shall be delivered by the justice to the sheriff, to be securely held by him “ subject to the order of the court trying the offender,” and upon conviction of the person offending, the sheriff shall forthwith destroy, of cause to be destroyed, the apparatus, devices, etc., used for unlawful purposes ; and as to all other property, “ he shall, after such conviction, deliver the same, under the order of the court trying the offender, to the proper owner thereof.”
On behalf of the State it is insisted that it was the duty of the court to order the destruction of the gaming devices, for the unlawful keeping and exhibition of which the owner had been convicted, and which had been taken by the sheriff, in whose custody they remained.
We have no doubt of the authority of a sheriff, or other officer authorized to make arrests, to seize articles which he knows, or has good reason to believe, are being employed in violating the criminal law, or as instruments for the commission of crime. Things which may supply evidence of
The gaming devices in question having been lawfully seized and taken into the possession of the sheriff, they were as properly subject to the order of the court trying the offender as they would have been in case they had been seized by a constable armed with a search warrant, and afterwards turned over to the sheriff. The statute authorizing the issuance of search warrants was designed as a means of discovering and securing possession by the officers of the law of articles or things the use or exhibition of which was immoral and unlawful.
If, without resorting to the statute, the proper officer of the court obtained possesion of the articles, or things, used in the commission of a crime, in some other manner equally lawful and legitimate, the jurisdiction of the court over the subject would be the same as if it had been first taken by a search warrant, and turned over to the sheriff. In other words, so far as the court has jurisdiction over the property or thing, its jurisdiction depends upon the fact that the apparatus shall be properly in the custody of the sheriff, when the offender is before the court for trial, and not that he shall have obtained the custody by means of a search warrant. The material part of the statute in that regard is, that the
The inquiry then is, was it necessary in order to warrant the destruction of the property that an order to that effect should have been made by the court, and if it was, had the court jurisdiction to make it after the case was ended? It- is fundamental that no person can be deprived of any article, which is recognized by the law as property, without a. judicial hearing, after due notice. No degree of misconduct, or wrong, can justify the forfeiture of the property of a citizen, except in pursuance of some judicial procedure, of which the owner shall have notice, and in which he shall have the opportunity to contest the ground upon which the forfeiture is claimed. Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420); People v. Copely, 4 Crim. Law Mag. 187; 8 Am. & Eng. Encyc. of Law, 1081.
There are, however, some articles which can not be kept, exhibited, or used for any lawful or innocent purpose, such as spurious coin or bills, obscene pictures, books or prints, and other articles or devices, the exhibition, use, or possession of which, in any form, and under all circumstances, is unlawful or corrupting, and prejudicial to public morals or health. Such articles are regarded as nuisances per se. Property can not- exist in them, and an officer into whose hands they come may be authorized by statute, or ordinance,, to destroy them summarily, without process. It has been held, however, that such articles can not be destroyed by an officer in the absence of a law, or ordinance, authorizing their destruction. Ridgeway v. West, 60 Ind. 371.
In many instances property may or may not exist in a thing, according to the use to which it is, or may be applied, or the purpose for which it is kept or exhibited, or the intrinsic value of the materials out of which it is constructed. Gaming apparatus may be made of valuable material, capable in some other form of being applied to useful and lawful purposes, or it may be used for innocent and harmless amusement in the form in which it exists. It can not always be determined by inspection, or declared as matter of law, that articles used for the illegal and immoral purpose of gaming, may not also be used for innocent and lawful purposes, or that in honest hands they may not constitute lawful merchandise. Unless, therefore, articles seized are of such a character that the law will not recognize them as property, entitled as such to its protection, under any circumstances they can not be summarily destroyed without affording the owner an opportunity to be heard upon the subject of their unlawful use, and to show whether or not the articles are intrinsically useful or valuable for any other
If upon inquiry by the court trying the offender it should appear that the property seized is such as is of no substantial or practical use or value except in connection with a gambling-room, or if the use to which it is customarily devoted by the owner is unlawful gaming, its destruction should be ordered upon application to the court, as part of the judgment in the case, provided the defendant be found guilty, and as to all other property seized, that is such as is adapted to a lawful use, it should be ordered returned to the owner, in accordance with the provisions of section 1623, R. S. 1881; Commonwealth v. Gaming Implements, 119 Mass. 332; Attorney General v. Justices, etc., supra.
This last section, so far as applicable to gaming apparatus or devices, is to be construed in connection with section 2086. When so construed it is apparent that the inquiry in respect to the character of the property seized, and “ the order of the court trying the offender,” referred to in section 1623, must be made by the court before or at the time final judgment is pronounced against the defendant. The destruction of the implements employed in the commission of the crime must be regarded as, in some sense, a part of the penalty to be adjudged by the court against the offender, and the order of forfeiture must be part of the judgment pronounced in the case. After the penalty has been assessed, and final judgment has been pronounced, and the case ended, the court can not again take jurisdiction upon amere motion, and proceed with another hearing, and make another order .enforcing punishment in the nature of an additional penalty against the defendant or his property.
The conclusion follows that, after having pronounced final judgment, the court had no jurisdiction to enter upon an inquiry and make an order for the destruction of the articles seized. The application should have been made before, or at the time, judgment was pronounced. The order for the
The judgment is affirmed.