Albright v. Karston , 209 Ark. 348 ( 1945 )

The fact that my six associates agree with all that is said in the majority opinion would ordinarily cause me to doubt the soundness of my views, and to impute to the concepts I entertain an urge to moralize, as distinguished from a duty to correctly declare the law.

But where one's beliefs respecting a transaction that must be dealt with officially reach the dignity of an earliest conviction; and when, as here, the subject is of first impression in Arkansas and there is no domestic precedent to which the term stare decisis may attach — in these circumstances there is no discretion behind which I may retire and assert with assurance that my concealment is a reality rather than a fiction.

We are not dealing with the rights of gentlemen who earn their bread by the sweat of their brows. But, even so, those who appear as appellees are entitled to the law's impartial application — fully, effectively, and as completely as though they were engaged in a business impressed with the public welfare. Certainly they are not to be denied equal protection merely because the occupation in which they are engaged is founded upon another's misfortune; a vocation to which the suspicion attaches that mathematical margins and percentages contribute to the travail of customers who in moments of weakness assume there is a chance to win, and who sometimes use their own funds.¹

Sufficiency of the search warrants, by virtue of which the raids were made, is not in doubt. It is equally certain that illegal gambling was being carried on in the "Blue Ribbon Club," operated by George Pakis, Gordon Henderson, and Louis Larson (where over a period from January to October, 1944, $2,071.10 was taken in six raids); in the "White Front Club," operated by Tony Karston, — and in such other places as Main Cigar Store, Circle Grill, Pass-Time Club, Reno Club, Milwaukee Bar, Citizens Club, and resorts bearing less dignified and alluring titles. Operating in these establishments (other than those already mentioned) were M. D. Clark, Raymond Tweedle, L. J. R. Wilson, Willie Page, Erb Wheatley, Walter Weldon, Louis Longinotti, Otis McCraw, Tim Crain, and Jack McJunkin.

That the State's interdictions against certain forms of gambling were being openly, flagrantly, brazenly, collusively, cooperatively, and defiantly violated is the only conclusion justified by the record. Effect of the willful conduct engaged in by those who were mentioned, (and, inferentially, by persons having larger interests, but whose identity is not revealed) was, and still is, to say that the General Assembly may make laws, but that officials elected and appointed at Hot Springs expect to defy them as the profits or convenience of a particular situation may suggest.

While this challenge to authority, and to the commonwealth's power, was riding the crest of popularity and profit, the Governor sent units of the State Police to Garland County, with the result that nearly six thousand dollars in gambler money was taken from the tables of these social mutineers; and it now forms the subject matter of this appeal.

To repeat, these gambler-claimants are not to be denied equal protection because their gains must necessarily result in another's loss. There are circumstances in which the act of receiving money from A, and on condition giving it to B, meets legislative approval. As to rights acquired through legalized gambling there is protection. But we are not now concerned with authorized machinations. The question is, Does money used in gambling houses for the sole purpose of implementing the prohibited transaction come under the statutory ban?

The decision in Albright v. Muncrief, 206 Ark. 319,176 S.W.2d 426, was that a teletype (through which racing data were received and relayed) was not a gambling device per se; but if used for the purpose of transmitting information without which betting would have been restricted, the teletype then became a gambler's aid; and when matter passing through the machine was delivered to the so-called "bookies," the instrumentalities were subject to confiscation and destruction.

This statement appears in the Muncrief opinion: "While [appellee, a printer in whose office teletypes were operated], was not physically present with the machines in question, in each of the gambling houses, we think he was constructively present with these machines, aiding and abetting the operation of these gambling houses through the use of the machines, and was equally guilty."

Later the decision says: "Our lawmakers have gone far in their attempt to suppress the gambling evil; and in so doing have given our enforcement officers authority to destroy the tools by the use of which gambling is carried on."

This declaration of the law, no doubt, had reference also to section 3335 of Pope's Digest, providing that "The judges of the several courts in this State shall, in their construction of the statutes prohibiting gaming, construe the same liberally, with a view of preventing persons from evading the penalty of the law, by changings of name, or the invention of new games or devices, that now are or may hereafter be brought into practice in any and all kinds of gaming, and all general terms of description shall be so construed as to have effect and include all games and devices as are not specifically named, and in all cases, when construction is necessary, it shall be in favor of the prohibition and against the offender."

But, in effect it is said by the majority, money is not a device, even though the game in question, or the wager it sustains, would otherwise be useless.

One of Webster's definitions of money is ". . . anything customarily used as a medium of exchange and measure of value, as sheep, wampum, copper rings, quills of salt or of gold dust, shovel blades, etc."

We are more concerned with legislative intent than with abstruse definitions. But, says the majority opinion — and this appears to be the basis upon which the defiant appellees are being reimbursed — "The money involved herein cannot be held to be a gambling device or a part of paraphernalia used for gambling, . . . and the Courts are powerless to award [the remedy requested]."

Assuming that the lawmakers, in their choice of terms, used the word "device" in the exact sense my associates have construed it, — still, the statutes do not end there; and I cannot agree that "the Courts are powerless." Again we have recourse to recognized authority. Formerly "paraphernalia" was the property (other than dower, marriage settlement, etc.) which at common law remained, more or less, under the control of a married woman, and which did not pass into the administration of the husband's estate upon his decease before her. — "Personal belongings, such as equipments, finery," and the like.

Ballentine's Law Dictionary speaks of personal ornaments, jewelry, and individual adornments peculiar to the woman's station in life. Paraphernalia embraced diamonds and other precious stones, as well as ornaments standing in the place of value or wealth.

It may rationally be presumed that this Court's majority has in mind that money, as such, is inanimate, cold, and bleak; and that it is barren of that capacity to corrupt which must exist under the General Assembly's conception of "device," or "paraphernalia." But the same legislative authority that tried (through the use of language stronger than is ordinarily used) to divest the operator of a gambling house in respect of instrumentalities essential to his profession, and to deprive such gambler of the means by which he enforces financial stricture — that same authority directed Judges and Courts to declare the law liberally, ". . . and all general terms of description shall be so construed as to have effect, and [such general terms shall include] all . . . devices as are not specifically named."

A work regarded as of preeminent value since a first edition was published in 1852 is Roget's Thesaurus of English Words and Phrases. It presents "paraphernalia" under two divisions — machinery, and belongings. The majority opinion accepts one classification and rejects the other. Under "property," Roget lists ". . . assets, belongings, means, resources, circumstances, wealth, money."

March's Thesaurus Dictionary — "A Treasure House of Words and Knowledge" — divides paraphernalia three ways: ornaments, instruments, and property. Included in property is money — "the medium of exchange."

I think we were correct in holding that machines leased by a printer and operated in distant cities became gambling paraphernalia when words reproduced by electrical impulses were transcribed on paper and the information, as the opinion says, was "relayed to various places in Hot Springs . . . where public betting was carried on."

The teletypes were devices or paraphernalia used by the gamblers, even though words, figures, and sentences were the product. Still, bookmakers relied upon the knowledge so obtained and thereby took their dollar tolls. In the case at bar money was the means by which the opposing interests of gambler and victim were represented. The table upon which this money was placed, if that were the method employed; the "chips" or tokens standing for money; the lamp illuminating the game; chairs upon which customers were seated; the carpet adorning the floor, and electric fans — these and other paraphernalia, including the scrap of paper delivered by Muncrief when his teletype functioned — were subject to confiscation and destruction: but money, the admitted objective of manipulation — the reward for all that gave rise to the law's miscarriage — money must remain inviolate and be returned to the malefactors as the tools of their trade.

Why?

Because "the Courts are powerless."

¹ Simpson v. Brooks, 208 Ark. 1093, 189 S.W.2d 364