17 How. Pr. 100 | New York Court of Common Pleas | 1859
— Justice Connolly, attended by others, entered thé premises 581 Broadway, and there finding several persons engaged in playing cards, arrested them on a charge of gambling, as appears by the affidavit of McClelland read in opposition to this motion. It seems that in the apartment in which such persons were found at play, or on the premises, there were obtain devices, or apparatus for gambling, which were seized and placed in the custody of the defendant, who is the property clerk of the board of police, created by the act passed April 15,1857. Laws '1857, chap. 569. The plaintiff claims the apparatus so seized, and, insisting that he is entitled to have them, notwithstanding the circumstances detailed, brought this action, which is one for the claim and delivery of personal property under the Code, to obtain possession of them.
The defendant, having delivered the articles to the sheriff, moves for an order compelling their return to him, or for such' order as he may be entitled to in the premises, upon the ground that they are nuisances at common law, possessing none of the attributes of property, and that no action can be brought for their recovery.
The plaintiff, in answer to this view, insists that the seizure was unlawful, because no warrant was exhibited, and that the detention of the property is unlawful, because it is a deprivation of property without due process of law. The act against gambling, passed July 10,1851 (Laws 1851, chap. 504), and amended by the act passed April 9,1855 (Laws 1855, chap. 214), was not referred to on the argument, but reference to it, and the act of 1857, supra, creating the metropolitan police, will be necessary in considering this motion.
The ninth section of the act of 1857 provides, that if the general superintendent of police shall report, in writing, to the board of police that there are good grounds for believing any house or room to be kept dr used as a gambling house or cock-pit, and if two or more householders, dwelling within the metropolitan police district, and not belonging to the metropolitan police, shall make oath, in' writing, ti/aat the premises complained of are commonly reported and believed by the deponents to be kept as a common gaming house or cock-pit, any commissioner of police may, by order in writing, authorize the general superintendent, or either deputy superintendent of police, to enter upon such premises, and take into custody all persons who shall be found therein, and to destroy all implements of gaming found therein. These statutes are not inconsistent with each other. The act of 1857 confers power upon the commissioners of police, aud the act of 1851 prescribes the duties of magistrates and police justices. The seizure complained of was made, it would seem from the papers submitted, by Justice Connolly, without any interposition or interference of or by the police commissioners.
It is alleged that no warrant was exhibited at the time of the arrest and seizure, and that allegation has not been controverted. Assuming, then, that there was no warrant issued, that fact does
It is. said by Blaekstone (4th Book, page 292), that an arrest may be made by a justice of the peace without warrant, who may himself apprehend, or cause to be apprehended, by word only,, any person committing a felony or breach of the peace in his presence. The. rule laid down by Chitty (1 Vol. Crim.Law, 14 [4th Am. edition]), is as follows: “ Any person may, without warrant, apprehend and carry before a magistrate a party about to expose an infant and leave it to perish; or a person playing with false dice, or otherwise committing a fraud affecting the public.” And again, at pages 19 and 20, “That a constable, by the original and inherent power which he possesses, may, for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his presence, apprehend the supposed offender virtute officii without any warrant.” See also, on this subject, Commonwealth v. Deacon, 8 S. & R. 47 ; Knot v. Gay, 1 Root, 66 ; 2 Hawkins, c. 12, § 20.
From these authorities the rule deducible is, that any person may, without warrant, arrest another who has committed a felony, either at the time it is committed or subsequent thereto; and that a justice of the peace or constable, virtute officii, may, without warrant, not only arrest a person for a felony,, but also for any breach of the peace or misdemeanor less than a felony, committed in his presence. The arrest of the parties engaged at play, as before stated, on a charge of gambling, was, therefore, legally made. When the arrest is made, the seizure of the ■ implements is provided for by law, as we have seen, for the twofold object of using them as evidence of the charge, and that
In regard to the lewd pictures, the conclusion must be the same, because it is an indictable offence at common law to publish an obscene book or print, and so of any offence tending to corrupt the" morals of the people. Wharton Am. Cr. Law, l§ 2547. The public exhibition of them is an offence against society, and punishable (Sharfles v. Carn, 2 S. & R. 91), and the
. Whether the charges made (and of which the gambling apparatus and lewd pictures are held as evidence) can be sustained or not, it is not for me to determine. That is to be done in another tribunal, and upon a very different mode of investigation. It is sufficient for the purpose of this motion, that the property sought to be recovered is properly in the custody of the law. The complaint must be dismissed.
Ordered accordingly.