One Cocktail Glass v. State ( 1977 )

BURKE, Justice,

concurring separately.

With regard to the money found in Parent’s front pockets, totalling $1443.95, I reluctantly concur in the view that such money, along with the rest of the money seized, must be returned. That money, according to Parent, formed the bank for the blackjack and crap games. Such being the case, I would have no trouble concluding that it was a gambling implement if it were not for certain provisions of federal law. In the absence of those provisions, I would apply the reasoning expressed in Pratico v. Rhodes, 32 N.J.Super. 178, 108 A.2d 97, 99 (1954), where the court said:

Where money is earmarked and segregated as part of an illegal gambling operation it then constitutes a gambling device subject to seizure, (citations omitted)

Accord Spagnuolo v. Bonnet, 16 N.J. 546, 109 A.2d 623 (1954).

However, AS 11.45.040, in clear and simple terms, commands the destruction of “gambling implements” seized under the authority thereof. No mention is made of forfeiture or other disposition. Yet, as stated in Spagnuolo v. Bonnet, supra, 109 A.2d at 630;

[T]he State . . . has not the constitutional power to destroy [money]. Such power is an incident of the federal power ‘to coin money, [and] regulate the Value thereof, * * Art. I, sec. 8, U.S. Const.; Ling Su Fan v. United States, 218 U.S. 302, 31 S.Ct. 21, 54 L.Ed. 1049 (1910); 31 U.S.C.A. § 420 et seq.

The destruction of money may even be a federal crime. See 18 U.S.C. §§ 331, 333.

I think we must assume that the legislature was aware of the federal laws concerning the treatment of money when it enacted AS 11.45.040. Since the destruction of money is beyond the power of the state, I am forced to conclude that the legislature did not intend money to be included within the meaning of the phrase “gambling implement” as used in AS 11.45.040. Thus, I see no alternative but to return Parent’s money to him. While It seems to me that the law should permit a forfeiture of such money, that decision is one for the legislative branch rather than this court.

In all other respects, I concur.