Commonwealth v. Gaming Implements , 155 Mass. 165 ( 1892 )

Knowlton, J.

The Pub. Sts. c. 212, § 2, cl. 7, give authority to certain courts to issue warrants to search for and seize, among other things, “ gaming apparatus or implements used or kept and provided to be used in unlawful gaming, in any gaming-house, or in any building, apartment, or place resorted to for the purpose of unlawful gaming, and the furniture, fixtures, and personal property found in such place at a time when persons are engaged in unlawful gaming.” The Pub. Sts. c. 99, § 10, make particular provisions for issuing warrants to seize gaming implements, and to arrest persons found playing for money in gaming-houses, or present at games played for money or other things of value in gaming-houses, together with the implements there found. The St. of 1887, c. 448, § 2, amends the Pub. Sts. c. 99, § 10, so as to authorize the seizure of “ all the personal property, furniture, and fixtures ” found in gaming-houses under such circumstances, and the St. of 1885, c. 66, § 1, amends the Pub. Sts. c. 212, § 9, so as to make them applicable to the seizure of gaming implements and of property found in gaming-houses. The last sentence of this section as amended is as follows: “ Any article not found to have been unlawfully used or intended for unlawful use shall be delivered to the owner.”

The claimants in the present case contend that the unlawful use referred to is an unlawful use by the owner of the property, and not merely by the keeper of the gaming-house. We are of opinion that this contention is not well founded. The difficulty of enforcing the statutes against gaming is so great that the Legislature has found it necessary to make stringent laws, and so it is provided that not only the implements of gaming may be. seized, but the personal property, furniture, and fixtures found in the gaming-house, and that such property, if unlawfully used or intended to be unlawfully used in the business carried on there, may be forfeited. The purpose of the statute seems to be to subject to forfeiture any property which is unlawfully used in a gaming-house, without proof of guilty knowledge on the part of its owner, and to put upon property owners who wish to have their property secure the burden of seeing that it is not kept and unlawfully used in a gaming-house.

But we are of opinion that the court was wrong in decreeing condemnation and forfeiture on the facts found by the jury. There was no finding that the property was unlawfully used, or intended to be unlawfully used. In the absence of such á finding, the statute requires that it shall be delivered to the owner. It does not appear that this subject was brought to the attention of the presiding justice, and no issue was submitted to the jury in regard to it; but on account of this error there must be a new trial. Exceptions sustained.