Bales v. State , 3 W. Va. 685 ( 1868 )

Brown, President,

delivered the opinion of the court.

Adam S. Bales was convicted of grand larceny for stealing three hundred and. thirty ivory checks, of the value of twenty-five cents each. On the trial these checks were proved to have been kept by the owner at his saloon, for gambling purposes, and were so used in playing the game of poker.

The prisoner assigns for error, “ That the offence of larceny cannot be committed by taking and carrying away articles manufactured for and used for the purpose of gambling.” Alleging that “the law does not recognize them as property, over which its protection is to be extended. The statute expressly authorizes a search warrant to be issued for the seizure of such articles, wherever found, subject to the jurisdiction of the justice, and orders them to be burned.”

The important question therefore, is, whether these checks, kept and used for gambling contrary to the statute, can be the subject of larceny? That they could not have been recovered by action, is clear on the general principle that no court would leud its aid to the guilty keeper or owner to recover his illegal articles. And the case of Spaulding vs. Preston, 21 Vt., 10, is directly in point. But. still, the question recurs, whether larceny can be committed of such prohibited things. And, to hold that it could not, would be to run the hazard of encouraging larceny by discouraging gaming.

The law punishes gaming and the keeping for gaming purposes articles of like character with those mentioned, and provides the mode of seizing and destroying them by the hand of an officer and the order of the magistrate. And it is perhaps more politic that resort be had to the mode prescribed by law for that purpose, than to encourage a resort to theft for discouraging gambling. The cases cited from Massachusetts, where the subject was twice fully considered, take this view of it. Commonwealth vs. Coffe, 9 Gray, 137; Com. vs. Rourke, 10 Cush., 397; Ward vs. People, 3 Hill, 396.

I think, therefore, that this objection of the prisoner must be overruled.

There is nothing in the affidavits filed, or other objections to the verdict, to warrant the court in setting aside the verdict and awarding a new trial. There was, therefore, no error in the judgment of the circuit court, and the same must be affirmed with costs.

Judgment affirmed.