Summary
In Jacobs, the Ohio Supreme Court held that evidence confiscated by a law enforcement officer without a warrant, for use in a criminal proceeding, is under the control and subject to the order of the court pursuant to certain General Code statutory provisions.
Summary of this case from Miller v. Ohio State Highway PatrolOpinion
No. 28168
Decided December 4, 1940.
Gambling — Property or money seized by sheriff — Subject to order and disposition by trial court in criminal proceeding — Sections 13430-8 and 13430-9, General Code — Money not subject to confiscation but to be returned, when.
1. Property or money seized by a sheriff in raiding a place where gambling is conducted is under the control and subject to the order of a trial court in a criminal proceeding, and the court, as a part of that proceeding, may make proper disposition of the property or money so seized in accordance with the provisions of Sections 13430-8 and 13430-9, General Code.
2. Money so taken is not a subject of confiscation as property, the possession of which is in itself an offense, and the judgment of fine and costs levied by the court having been satisfied, such money should at the termination of the proceedings be returned to the person in whose possession it was found.
APPEAL from the Court of Appeals of Lorain county.
This is a proceeding on appeal from the Court of Appeals of Lorain county. The issue presented arose out of the prosecution of Max Jacobs and Louis Jacobs on the charge of keeping a room where wagers on horse races were received and recorded. Upon arraignment, each of the defendants named entered a plea of guilty to the charge made by the indictment, whereupon substantial fines were assessed and paid.
The arrest of the defendants resulted from a raid of the place in question by the sheriff of the county who, without a warrant of search and seizure, took possession of various articles of property, most of which had been used in the operation of a gambling establishment. The sum of $104.40 in a cloth bag on the counter was likewise taken by the sheriff, as was also the sum of $388 which was in the pocket of one Stanley Sharkey, the manager of the enterprise in behalf of the defendants, and was upon demand turned over to the sheriff by Sharkey with his "personal belongings."
As the result of a hearing upon the application of one of the defendants for the return of the money and property taken, the Court of Common Pleas ordered that certain property used in conducting the gambling place be destroyed. The court specifically found that the money taken, excepting $5 belonging to Stanley Sharkey, was the property of Max Jacobs and ordered that such balance, after deducting therefrom the increased cost of the proceedings, be returned to him.
The Court of Appeals affirmed that judgment. Upon motion, the case was ordered certified to this court.
Mr. Howard R. Butler, prosecuting attorney, and Mr. William G. Wickens, for appellant.
Mr. G.A. Resek and Mr. Dan K. Cook, for appellees.
The sole question presented in this case is the validity of the order of the Court of Common Pleas restoring to the defendant the money seized by the sheriff. The contentions that the proceeding is wholly unauthorized and that the right to the possession of the money in question can be determined only in a separate and independent action to which the sheriff is made a party and duly served with summons cannot be sustained.
The duties and obligations of a sheriff with respect to property taken under such circumstances and conditions as here disclosed are substantially the same whether or not a warrant of search and seizure had been procured prior thereto, and surely the rights of the owner of such property or money are no less where, as here, the property was taken without such warrant. In either instance, the property or money is under the control and subject to the order of the court pursuant to the statute, not in a separate action but in the same proceeding. As provided by statute (Section 13430-6, General Code), such property is taken for use as evidence and, when that purpose shall have been served, disposition thereof is to be made pursuant to and in accordance with the provisions of Sections 13430-8 and 13430-9, General Code, which are as follows:
Section 13430-8. "If the accused is discharged by the judge or magistrate, the property or other things seized shall be returned to the person in whose possession they were found, unless the possession of such articles is in itself an offense, in which case they shall be destroyed. If he is convicted, the property shall be returned to its owner, and the other things destroyed under the direction of the court."
Section 13430-9. "Upon conviction of a person for keeping a room or place to be used or kept for gambling, or knowingly permitting gambling to be conducted therein, or permitting a game to be played for gain, or a gaming device for gain, money or other property or for betting, or gambling, or permitting such device to be so used, or for being without a fixed residence and in the habit of gambling, if money or other property won in gaming, be found in his possession, such money or other property shall be subject to seizure and payment of a judgment which may be rendered against him, growing out of such violation of law."
It is pertinent to observe that there are no unpaid fines to which this fund may be subjected, and it does not appear that there is any existing judgment or contemplated suits to recover any judgment for claimed gambling losses. Such money is not subject to confiscation as is property the possession of which in itself is an offense; neither is there any statutory requirement that it shall be withheld from the owner thereof indefinitely, and such requirement cannot be read into the statute above quoted. The contention of the prosecuting attorney therefore cannot be sustained that these funds may not be restored to the defendant but must be held for the period of a year for the satisfaction of any judgment for losses sustained by participants in gambling in such place which might be procured against the defendant and then, if no such claims arise, shall be deemed "a perquisite" and paid "into the county treasury, to the credit of the general county fund" under the provisions of Section 2983, General Code.
We are in accord with the conclusion of the Court of Appeals, and its judgment is accordingly affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, TURNER, WILLIAMS and HART, JJ., concur.