Albright v. Muncrief , 206 Ark. 319 ( 1943 )

I respectfully dissent from the majority opinion in this case.

I cannot agree that these teletype machines, located in a room which was part of Muncrief's printing office, were gambling devices. Certainly they were not made for gaming. They are merely typewriters operated by remote control over telegraph wires. Such instruments are to be found in nearly every telegraph office and in many newspaper establishments. The machines involved herein were not found in use in any gambling house.

Muncrief received over these machines information about horse races being run at the various, tracks in the United States. In so doing he violated no law. This information he used in three ways: First, he transmitted it to certain gambling houses in Hot Springs; second, he transmitted it to a newspaper in that city; and, third, he used it in printing handbills concerning the races, which he sold to the public. Under no statute of this state could it be said that either of the two last mentioned uses of this teletyped news made by Muncrief was illegal. In the absence of legislation forbidding the receiving and transmitting of information about horse racing and outlawing devices which receive and transmit such information, these teletype machines were not, in my opinion, subject to seizure and destruction.

The only case in which the right of officers in enforcing laws against gambling to seize a teletype machine has been passed on by an appellate court is that of In re Teletype Machines, 126 Pa. Super. 633, 191 A. 210, decided by the superior court of Pennsylvania in 1937. In that case it appeared that such a machine was seized by the officers in a "bookmaking" establishment. The trial court ordered its destruction as a gambling device, but this judgment was reversed by the supreme court, which held (citing as authority the definition of a gambling device given by the supreme court of Arkansas in the case of State v. Sanders, 86 Ark. 353, 111 S.W. 454, 19 L.R.A., N.S., 913) that the teletype machine was not a gambling device.

So far as I have been able to discover, no court of last resort has ever before condemned as a gambling device an instrument not made for gambling, not used to gamble on, and not located in a gambling house.

Nor can I agree that the constitutional requirement (15, art. II of the Constitution of Arkansas) that a search warrant may be issued only on oath or affirmation is one that the legislature, or the courts, may properly disregard. The issuance of search warrants and the seizure and destruction thereunder of private property constitute a drastic, summary, and highly penal procedure. The requirement in the Constitution that someone should make an oath or affirmation as the basis for such a proceeding is a reasonable one. It is a valuable safeguard of the citizen's rights, and is, in my judgment, a sane and proper limitation upon what, without it, might become a dangerously abused power.

"A search warrant cannot be lawfully issued unless the grounds on which it is based are supported by oath or affirmation of the complaining party." 47 Am.Jur. 519.

"Before a valid search warrant may issue there must be an application therefor under oath or affirmation in proper form showing probable cause for the issuance of the warrant." 56 C.J. 1211.

The suppression of gambling is important. But it is not more important than maintaining in all their pristine vigor those constitutional safeguards which our forefathers in their wisdom created for us after they had bought with "blood, sweat and tears" the right to erect for themselves and us a constitutional system of free government.

The principles enunciated in judicial decisions cannot be limited in their effect to the precise question then being determined by the court. And I fear that this whittling away by judicial decision of constitutional rights of the individual, even in the praiseworthy effort to suppress gambling, may some day bring about evils not now foreseen. A dictator-minded executive, backed up by a submissive legislature, might conceivably use the decision in the instant case as authority to raid and destroy plants of "opposition" newspapers, and justify such oppressive acts on the ground that the news or editorials published in the papers were, in the judgment of those in power, harmful and subversive to public welfare. Nothing is more essential to preservation of liberty than freedom of the press. The framers of the Constitution of Arkansas wisely wrote therein: "The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man." This constitutional mandate ought to be upheld against any form of encroachment.

McFADDIN, J., (dissenting). In order to reach its conclusion, the majority of the court must necessarily find and hold, inter alia: (1) that the teletype machines were gambling devices; and (2) that the warrant issued by the justice of the peace was in conformity with constitutional requirements. Regardless of the other holding of the majority (concerning which I am not now speaking), I find it impossible to agree to the two points above. Therefore, I respectfully dissent and present my views:

I. The Teletype Machines Were Not Gambling Devices. The agreed statement in this case says:

"The machines which were seized were ordinary telegraph instruments designed for the purpose of receiving telegraphic information by wire and transcribing same. The machines seized in this case are no different from any other telegraph ticker machine, and the machines may be exhibited to the court as evidence.

"No gambling of any kind was carried on in the premises occupied by plaintiff and in which the machines seized were located. The plaintiff does not own or operate any gambling establishment, whatsoever, and has no connection with any gambling establishments, except as hereinbefore stated. The consideration paid to plaintiff by his customers is in payment for information furnished and the amount thereof is a certain fixed amount and does not depend upon the success or failure of any business conducted by his customers."

And again: "The said two ticker machines were primarily used for obtaining information to be furnished to said places above mentioned. However, the plaintiff did also furnish the same information to a daily newspaper published in Hot Springs, Arkansas, and also used said information in his printing business for the purpose of printing circulars and handbills concerning races. Plaintiff was paid for furnishing this information."

And again: "The plaintiff is a resident of Hot Springs, Arkansas, and owns and operates a printing business at 316 Ouachita Avenue, in the City of Hot Springs, Arkansas. That in said printing establishment there were located two ticker tape machines. These ticker tape machines were connected by direct wire with the Western Union Telegraph system."

Thus, it is agreed that these two teletype machines are such machines as any newspaper office might have. They were not located in a gambling house but in a printing office, some distance from any gambling house. Appellants say that the teletype machines were the "heart of the gambling racket." If that be true, we have the strange anomaly of the heart separated from the body in an organism. These machines were no more vital to the gambling establishment than was (1) the Western Union Telegraph Company which supplied the information to the machines, or (2) the telephone company whose services were used to transmit the information from the printing office to the bookmaker, or (3) the electric company whose current made possible the operation of the Western Union, the teletype machine and the telephone. If one instrumentality in the chain for the transmission of information can be seized as a part of the gambling racket, then all can be seized; for each is essential to the transmission of information, and one is no more the "heart of the gambling racket" than is the other. The power which the majority are giving the police in this case to destroy the teletype machines not found in the gambling house that power can in the hands of some unscrupulous official in years to come, be used to destroy newspapers, telegraph offices, telephone lines, and other agencies for the dissemination of information. Under the good intention of destroying the gambling racket, the majority may be creating a frankenstein which will destroy property rights. No court of any other state — so far as I am advised — has held such a teletype machine to be a gambling device. The case of In Re Teletype Machine,126 Pa. Super. 533, 191 A. 210 (1937), was a proceeding for the forfeiture and destruction of a teletype machine which had been taken under a search and seizure warrant, and that machine was actually found in the gambling house. Forfeiture of the teletype machine was sought as an illegal gambling device, but the court refused its destruction, saying:

"A teletype machine is a telegraph machine, which typewrites the telegram as the message is received instead of requiring an operator to receive it in the Morse code and transcribe it. It is in general use in telegraph offices, and the results of its operation may be seen in the typewritten slips pasted on a telegraph blank when delivered. It is, in no sense, an article, device, or apparatus to win or gain money, or at which money or other valuable thing may be played for or staked or betted upon. It is a machine or apparatus for transmitting or conveying information, not a gambling device or apparatus. The fact that gamblers may use the information thus received in their unlawful business, for the purpose of making bets or wagers or to pay off or collect on such bets or wagers, does not transform the teletype into a gambling machine, device, or apparatus, such as roulette wheels, rouge et noir tables, faro layouts, wheels of fortune, cards, dice, punch boards, slot machines, lottery tickets, `numbers' slips or policy sheets, etc."

In the case of Hagerty v. Coleman, 133 Fla. 363,182 So. 776, the Supreme Court of Florida was asked to allow a telephone to be destroyed because it was found in a gambling house, and such request was refused because a telephone is not a gambling device. In Commonwealth v. Western Union Tel. Co., 112 Ky. 355, 67 S.W. 59, 57 L.R.A. 614, 99 Am. St. Rep. 299, the telegraph company was charged with maintaining a common nuisance because it transmitted over its lines information which allowed a bookmaking house to operate, but the Kentucky court said that the fact that persons receiving the information used it illegally did not make the telephone company a violator of the criminal law. The same principle applies here: Muncrief, operating a printing office, furnished information to newspapers and others; and the fact that some of his customers used the information illegally did not make his machines gambling devices per se. The very fact that the information was furnished to newspapers for publication shows that the teletype machine was not used solely for gambling. In Garland Novelty Company v. State, 71 Ark. 138, 71 S.W. 257, Mr. Justice RIDDICK, speaking for this court as to what property could be destroyed under the statute here involved, said: "The statute does not authorize the seizure and destruction of tables or other useful furniture simply because they may be found in a gambling house, or because they may be used in playing cards or other games upon which money is bet, but it permits the destruction of those tables and devices only that are made and kept solely for the purpose of carrying on a business which the law forbids. It is, under our statute, a nuisance to publicly exhibit and operate a machine made solely for the purpose of gambling, and the Legislature has, by this statute, authorized the abatement of the nuisance by the destruction of the machine."

I have italicized the word "solely" to emphasize that Mr. Justice RIDDICK, in the case cited, recognized that before an instrument could be destroyed it must be used "solely" for gambling. The teletype machines involved in this case were not so used; and the majority, by allowing the destruction of these teletype machines in the case at bar, is opening the door that will allow the destruction of a vast amount of property at the whim of some ill-advised and misguided officer.

II. The Constitutional Question. In art. II, 15, of our Constitution, it is provided: "The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized."

I call attention to the fact that the Constitution says that the warrant shall not issue except it be supported by oath or affirmation. The agreed statement of facts herein says:

"The warrant attached hereto constitutes the complete record of proceedings had in connection with the issuance of said warrant. No affidavit of probable cause was filed with or exhibited to the J. P. issuing said warrant."

In other words, there was no written affidavit furnished the J. P. and no showing that any oath or affirmation was ever made in keeping with the Constitution. Article II of the Constitution is the Declaration of Rights, and in that article there was attempted to be asserted the rights of the people against which Legislatures, officers and courts could not encroach. The agreed statement in this case shows clearly that the warrant for the seizing of the machines did not comply with the constitutional mandates. So the taking was wrongful, and Muncrief is now seeking to recover from the State officials the property that they wrongfully took from him. In Appling v. State, 95 Ark. 185, 128 S.W. 866, 28 L.R.A., N.S., 548, we held that where the officer served a search warrant, the citizen could not resist on the ground that the warrant was wrongfully obtained and that no affidavit was made. In that case, the court took away from the citizen the right to resist the officer, and that naturally meant that the citizen had some protection from the court. The majority is now taking away from the citizen the ultimate right to regain his property that has been wrongfully taken from him. The effect of these two cases together means that if an officer with a void search and seizure warrant takes the property of the citizen, the citizen cannot resist the officer at the time, and cannot later recover his property. Such a holding is so foreign to my ideas of the rights of citizens that I must and do disagree with the majority holding to that effect. Under the good intention of destroying the gambling racket, the majority may be setting up a precedent that undermines the constitutional guaranties of property. Long after the present officials have passed from the scene of action — long after the writer of this dissent has joined his ancestors — the holding of the majority in this case will be cited as a precedent to justify courts in refusing to allow citizens to recover their property wrongfully taken. There must be a stopping point somewhere; and the time has come when I am ready to cry "halt" against the encroachments of a government on a citizen. That is the purpose of this dissent.