Commonwealth v. Gaming Implements

The Municipal Court of the city of Boston has jurisdiction to forfeit and order to be sold the furniture, fixtures, or personal property seized in a gaming-house on a search warrant issued from and returned to that court, under the Gen. Sts. c. 170, §§ 1-5, and the St. of 1869, c. 364, at a time when persons were there found playing an unlawful game. A. complaint on the Gen. Sts. c. 170, § 2, as amended by the St. of 1869, c. 364, § 2, alleged belief that “ gaming apparatus and implements are used, kept and provided to be used in unlawful gaming in certain rooms resorted to for the purpose of unlawful gaming, in a certain building situated and numbered thirteen and one half in Hayward Place, in Boston, that is to say, in the rooms in the second, third and fourth stories of said building, and also that furniture, fixtures and personal property are contained therein, and may be found therein at a time when persons may there be found playing at some unlawful game, which said rooms are occupied by some person whose name is to your complainant unknown.” The warrant issued on this complaint directed the officer to enter the rooms mentioned in the com plaint and search for and seize said gaming apparatus and implements, and also to search for and seize all the furniture, fixtures and personal property found in the rooms described in the complaint, at the time when any persons are there found playing at any unlawful game. Held, that the premises tc be searched were sufficiently described. Under the St. of 1869, c. 364, § 2, authorizing the search for and seizure “ of all tb.3 furniture, fixtures and personal property found in” a gaming-house, the officer is not limited in his right to seize, under a warrant following the words of the statute, merely the personal property liable to condemnation. An information, filed after the return of a warrant issued on a complaint under the Gen. Sts. c. 170, § 2, as amended by the St. of 1869, c. 364, § 2, after reciting the complaint and the warrant, averred that “ by virtue of said warrant ” the inform ant, on a day named, entered the rooms described, and then and there seized certain gaming apparatus and implements, (describing them,) “and your informant did also then and there seize certain furniture, fixtures and personal property, used as the furniture, fixtures and personal property of said rooms.” Held, that the information showed that the furniture, fixtures and personal property were seized by virtue of the warrant. Upon the filing of an information after the return of a warrant issued on a complaint under the Gen. Sts. c. 170, § 2, as amended by the St. of 1869, c. 364, § S, • praying for the condemnation of certain gaming apparatus and implements, the clerk issued an order “in accordance with the order of the court,” directing a service by copy of the information and order upon the persons in whose possession the articles were found, and by posting up a copy of the order and information on the building, where the seizure was made, fourteen days before the hearing. The return of the officer showed that after diligent search he could not find the parties named, and that their usual places of abode were unknown to him, and that the notice was served by posting a copy, as directed,, on the building. Held, that publication of notice in the public papers was not required, and that the notice given was sufficient.

Complaint on the Gen. Sts. a. 170, § 2, as amended by the St. of 1869, o. 364, § 2, alleging belief that “ gaming apparatus and implements are used, kept and provided to be used in unlawful gaming in certain rooms resorted to for the purpose of unlawful gaming, in a certain building situated and numbered thirteen and one half in Hayward Place, in said Boston, and within the judicial district of said court, that is to say, in the rooms in the second, third and fourth stories of said building, and also, that furniture, fixtures and personal property are contained therein, and may be found therein at a time when persons may there be found playing at some unlawful game, which said rooms are occupied by some person whose name is to your complainant unknown,” and praying “ for a warrant to search there for and to seize the same.” The warrant issued on this complaint directed the officer to enter into the rooms mentioned in the complaint, and to search for and seize said gaming apparatus and implements, and bring the said apparatus and implements so found before the court, and also “ to search for and to seize all the furniture, fixtures and personal property found in the rooms de scribed in the above complaint, at the time when any persons are there found playing at any unlawful game, and to bring said furniture, fixtures and personal property before said court, to be disposed of and dealt with as to law and justice shall appertain.” The officer’s return in the warrant was as follows : “ By virtue of the within warrant I have this day entered and searched the within described premises, and then and there found and seized the following gaming apparatus and implements, the same being then and there kept and provided to be used therein in unlawful gaming, and I now have the same before the court, to wit.” [Then followed a description of the property seized.] “ I also, at the same time and place, seized the following described furniture, fixtures and personal property, to wit.” [Then followed a description of the property.] “ The same being seized when persons were there found playing at an unlawful game called faro.” An information was thereupon filed in the said Municipal Court, by the officer serving the warrant, which, after reciting the complaint and the warrant, proceeded as follows: “ Whereupon, by virtue of said warrant and in pursuance of law, your informant did, on the twenty-seventh day of said April, enter into the rooms described as aforesaid, the said rooms then being resorted to for the purpose of unlawful gaming, and then and there seized certain gaming apparatus and implements then and there used, kept and provided to be used in unlawful gaming, tc wit: one faro table, nine packs of cards, one 'sweat cloth, five hundred chips, and one deal box and one gaming-table, all of said gaming apparatus and implements then being in the possession of Charles Childs, William Hersey, Charles Moore, Joseph Lyle, Henry Black and Thomas C. Adams. “ And your informant did also then and there seize certain furniture, fixtures and personal property used as the furniture, fixtures and personal property of said rooms, to wit: thirteen chairs, one side-board, two tables, eight spittoons, fifty yards of carpet, one foot stool, four table covers, five tumblers, one pitcher, and two looking-glasses and one rubber mat, the same being found in said rooms at a time when certain persons, to wit, said Childs, Hersey, Moore, Lyle, Black, and Adams, were there found playing at an unlawful game called faro; all of said furniture, fixtures and personal property then being in the possession of persons, whose names are to your informant unknown. “ Arid your informant further avers that the aforesaid warrant,, on the twenty-eighth day of said April, was duly returned into said Municipal Court, with the doings of your informant indorsed thereon, and of record appears ; that it is not necessary that any of the aforesaid gaming apparatus or implements should be longer kept for the purpose of being produced or used as evidence on any trial; that all of said gaming apparatus and implements, and all of said furniture, fixtures and personal property, are now before said court and hath by law become forfeited, wherefore he prays that the said gaming apparatus and implements may be burned or otherwise destroyed, under the direction of said court, and that the said furniture, fixtures and personal property may be condemned, and adjudged forfeited, and sold in such manner as the court may order, and the proceeds of such sale disposed of as provided by law.” Upon this information the court ordered that an order of notice issue, and that the same be served upon the said Childs, Horsey, Moore, Lyle, Black and Adams therein mentioned, and an order of notice, of which the following is a copy, thereupon issued: “ Commonwealth of Massachusetts. Suffolk, ss. Municipal Court of the city "of Boston. Upon the information aforesaid, it is ordered by the court that the informant notify the within described persons in whose possession said gaming apparatus and implements, and said furniture, fixtures and personal property, were found, and any and all persons claiming any right or interest in or to any of the things therein mentioned, to appear before the justices of said Municipal Court, to be holden at said Boston for the transaction of criminal business, on the nineteenth day of May, in the year of our Lord one thousand eight hundred and seventy-five, at ten o’clock in the forenoon, by leaving an attested copy of said information, and of the order of court thereon, with the within described persons in whose possession said gaming apparatus and implements, and said furniture, fixtures and personal property, were found, personally, if they can he found, or at their usual places of abode, if the same are known, and by posting up a like attested copy of said information and order on the building therein named, the posting up of said copy, and the serving the same on the within described persons in whose possession said gaming apparatus and implements, and said furniture and fixtures and personal property, were found, to be fourteen days at least before the said last mentioned day, that they may then and there appear to answer said information, and for trial, and to show cause, if any they have, why the said alleged gaming apparatus and implements, and said furniture, fixtures and personal property, should not be forfeited, and why the prayer in said information set forth should not be granted.” On this order of notice the officer made the following return : “ On the 29th day of April, in the year of our Lord one thousand eight hundred and seventy-five, by virtue of the within order, I served the annexed information and order as within directed, by posting attested copies thereof on the building situated and numbered thirteen and one half in Hayward Place, in said Boston, being the same building in which the gaming apparatus and implements, and the furniture, fixtures and personal property, described in said information were seized, on the twenty-seventh day of April, current, the serving said information and order as above stated, and the posting the. same on the building as above stated, being more than fourteen days before the time within appointed for the trial. And I have made diligent search for the within described persons in whose possession said gaming apparatus and implements, and said furniture, fixtures and personal property, were found, and cannot find them within my precinct, and their usual places of abode are not known to me.” Nelson Tibbetts appeared as claimant of part of the property so seized. The Municipal Court adjudged the property claimed to be forfeited, and ordered it to be sold, and the claimant appealed to the Superior Court. In that court Tibbetts filed the following claim: “ And now comes Nelson Tibbetts, of the city of Boston, and says that he is the lawful owner of the personal property, viz., thirteen chairs, one sideboard, two tables, eight spittoons, fifty yards of carpeting, one footstool, four table covers, five tumblers, one plated water- pitcher, two looking-glasses and one rubber mat, described in the above complaint; and he now claims said property, and asks that the proceedings against the same be dismissed, and said property returned to him.” Before the jury were empanelled the claimant filed a motion to dismiss the proceedings, for the following reasons: “ 1. The Municipal Court of the city of Boston has no jurisdiction further than to issue the warrant to search, and seize the property, and no authority is conferred by statute upon said court to render the decree therein named, ordering the furniture and other personal, property to be sold, and from which decree the claimant appealed. “ 2. The proceedings and decree of the court appealed from were void, illegal and without authority of law, and this court cannot take jurisdiction of the proceedings on appeal. “ 3. The proceedings in this case are irregular and void, and contrary to the provisions of the Constitution of this state in this, that the furniture and other personal property for which a claim was made were appropriated to public uses without compensation, without a trial by jury, and by the decree of a court having no jurisdiction to adjudge the forfeiture of said property.” This motion was overruled, and the case proceeded to trial, it appeared in evidence that the property claimed was the property of the claimant Tibbetts; that he was not present at the time the gaming took place, and was not interested or connected with the parties who were engaged in the unlawful game; that a game called faro was, at the time of the seizure, being played by the persons named in the proceedings, in the room described in the complaint, See., upon which the warrant to search was issued, said building being used for a gaming-house; that the furniture and other property seized were used in the apartments where the said game of faro was being played, as the furniture and other property of said building, and were seized as alleged. The judge submitted to the jury the issues whether the articles claimed were used as the furniture, fixtures and personal property of said building, and whether the said building was a gaming-house, and the said articles found therein at a time when Charles Childs, William Hersev, Charles Moore, and other per sons, were therein playing at an unlawful game, to wit, a game called .faro. The jury answered in the affirmative. The claimant then asked the judge to rule as follows : “ 1. That the provisions of the St. of 1869, <?. 364, did not give jurisdiction to the Municipal Court of the city of Boston to adjudge a forfeiture of the furniture and other property of the claimant, and -that said court had no authority by statute to issue the decree named in the proceedings. “2. That if the provisions of said chapter conferred jurisdiction on said court to decree such forfeiture without a trial by jury, said provisions were contrary to the provisions of the Constitution of this state. “ 3. That the proceedings had in the Municipal Court were irregular and without authority of law. “ 4. That the proceedings, decree, &c., of said court, having been defective, irregular, contrary to the forms of law and the Constitution of the state, this court has no proper application before it for a condemnation of the personal property seized and described in the written claim filed in this court. “ 5. That, upon the evidence, the facts as found by the jury and the proceedings before this court, the claimant is entitled to a return of said property.” The judge declined to rule as requested, but did rule, that, upon the proceeding hereinbefore stated, and the facts found by the jury, the government was entitled to a decree of condemnation and forfeiture, and ordered the same to be entered; and the claimant alleged exceptions.