Appellee, on August 12, 1943, by appropriate action, sought to recover two teletype machines. He alleged, in his complaint, that appellants, members of the Arkansas State Police, without proper search and seizure warrant, entered his place of business in the city of Hot Springs and unlawfully seized the machines in question, in violation of his constitutional rights "as set forth in Amendment No. 4 and Amendment No. 14 of the Constitution of the United States and in art. 2, 15 of the Constitution of the State of Arkansas." He further alleged that the machines were not subject to seizure. Appellants, in their answer, denied that they were without power to seize the machines in question and further alleged that at the time of seizure, the machines were being used as gambling devices and therefore were subject to seizure and confiscation. There was a trial before the court upon an agreed statement of facts and a finding and judgment for appellee on all issues. This appeal followed.
The facts as stipulated by counsel are: "The plaintiff is a resident of Hot Springs, Arkansas, and owns and operates a printing business at 316 Ouachita Avenue, in the city of Hot Springs, Arkansas; that in said printing establishment there were located two ticker tape machines. These ticker tape machines were connected by direct wires with the Western Union Telegraph system; that plaintiff received over said ticker tape machines information concerning the running of horse races at the several different race tracks operating in the United
States; that prior to the running of said races the plaintiff received over said ticker tape machines information concerning said races — that is, the names of the horses, the names of the jockeys, the weight carried by the horses, the condition of the tracks, and the odds on each horse; that the plaintiff, by direct wire, relayed said information to various places in the city of Hot Springs, more commonly known as `bookies,' which places were conducted and operated as public betting places where bets were received by the operators at said places on the horse races concerning which the information supplied by said ticker machines was given; that after the running of said races the plaintiff would receive over the said ticker tapes the results of said races, and would immediately furnish that information by direct wire to the above mentioned places; that plaintiff knew that the said `bookies' were using this information in the operation of their business.
"The said two ticker machines were primarily used for obtaining information to be furnished to said places above mentioned. However, the plaintiff did also furnish the same information to a daily newspaper published in Hot Springs, Arkansas, and also used said information in his printing business for the purpose of printing circulars and handbills concerning races. Plaintiff was paid for furnishing this information.
"At the time said ticker machines were seized information was being received relating to horse races at the different tracks in the United States concerning the entries in said races, track odds, the names of the winning horses, and the horses that placed and showed; that at the time said machines were seized there were two operators relaying the information to the various places above mentioned by direct telephone wire, beginning with the information as to the condition of the track, the horses in each race, the names of jockeys, etc., with a continuous line of information until the races had been completed showing which horses were leading at the quarter, the half, at the stretch and at the end of each race. The information so relayed by these two operators
was received in the places above mentioned and posted on a blackboard so that customers could see the entries, odds, etc., and in some of the places a loud speaker was used to announce to the customers all of the information so received from the ticker machines.
"The two machines involved in this action were seized by the defendants, their agents, or deputies, on the 7th day of August, 1943, the said officers seizing them purporting to act under and by virtue of the authority of a search and seizure warrant, a copy of which is attached hereto and made a part hereof. The warrant attached hereto constitutes the complete record of proceedings had in connection with the issuance of said warrant. No affidavit of probable cause was filed with or exhibited to the justice of the peace issuing said warrant. No copy of said warrant was left with the plaintiff. No receipt for the property taken was given to him. The property seized was removed by the defendants from Garland county and was taken to the State Police headquarters in Pulaski county, Arkansas, and is at the present time held it said place. At the time suit was filed, no return had been made on said warrant by the officers seizing the property. Hot Springs, Arkansas, has a municipal court created by Act No. 2 of the Acts of 1917.
"The plaintiff was not arrested, and up until the present time has not been arrested or charged with the violation of any law whatsoever.
"The machines which were seized are ordinary telegraph instruments designed for the purpose of receiving telegraphic information by wire and transcribing same. The machines seized in this case are no different from any other telegraph ticker machine, and the machines may be exhibited to the court as evidence.
"No gambling of any kind was carried on in the premises occupied by plaintiff and in which the machines seized were located. The plaintiff does not own or operate any gambling establishments, whatsoever, and has no connection with any gambling establishments, except as hereinbefore stated. The consideration paid to plaintiff by his customers is in payment for information furnished
and the amount thereof is a certain fixed amount and does not depend upon the success or failure of any business conducted by his customers.
"In the operation of his business the plaintiff invited the public generally to come and patronize his printing business. At the time the machines were seized his printing business was in operation, the door from Ouachita Avenue to plaintiff's place of business was open, his business was being operated, and the officers walked in the front door and to the machines without the use of physical force. The machines in question were not visible from the street or to the public in general, and were in a room separate and apart from that occupied by his printing establishment."
The first question presented is: Were the teletype machines, on the facts, gambling devices and subject to seizure and forfeiture?
It must be conceded that the teletype machines were not gambling devices, per se. It does not follow, however, that they would not become gambling devices, under our statutes, when used for gambling purposes.
Section 3320, Pope's Digest, of our criminal law on gambling provides: "Every person who shall set up, keep or exhibit any gaming table or gambling device, commonly called A. B. C., E. O., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised, or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, etc."
Section 3322, Pope's Digest, provides: "Every person who . . .
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Appellee, on August 12, 1943, by appropriate action, sought to recover two teletype machines. He alleged, in his complaint, that appellants, members of the Arkansas State Police, without proper search and seizure warrant, entered his place of business in the city of Hot Springs and unlawfully seized the machines in question, in violation of his constitutional rights "as set forth in Amendment No. 4 and Amendment No. 14 of the Constitution of the United States and in art. 2, 15 of the Constitution of the State of Arkansas." He further alleged that the machines were not subject to seizure. Appellants, in their answer, denied that they were without power to seize the machines in question and further alleged that at the time of seizure, the machines were being used as gambling devices and therefore were subject to seizure and confiscation. There was a trial before the court upon an agreed statement of facts and a finding and judgment for appellee on all issues. This appeal followed.
The facts as stipulated by counsel are: "The plaintiff is a resident of Hot Springs, Arkansas, and owns and operates a printing business at 316 Ouachita Avenue, in the city of Hot Springs, Arkansas; that in said printing establishment there were located two ticker tape machines. These ticker tape machines were connected by direct wires with the Western Union Telegraph system; that plaintiff received over said ticker tape machines information concerning the running of horse races at the several different race tracks operating in the United
States; that prior to the running of said races the plaintiff received over said ticker tape machines information concerning said races — that is, the names of the horses, the names of the jockeys, the weight carried by the horses, the condition of the tracks, and the odds on each horse; that the plaintiff, by direct wire, relayed said information to various places in the city of Hot Springs, more commonly known as `bookies,' which places were conducted and operated as public betting places where bets were received by the operators at said places on the horse races concerning which the information supplied by said ticker machines was given; that after the running of said races the plaintiff would receive over the said ticker tapes the results of said races, and would immediately furnish that information by direct wire to the above mentioned places; that plaintiff knew that the said `bookies' were using this information in the operation of their business.
"The said two ticker machines were primarily used for obtaining information to be furnished to said places above mentioned. However, the plaintiff did also furnish the same information to a daily newspaper published in Hot Springs, Arkansas, and also used said information in his printing business for the purpose of printing circulars and handbills concerning races. Plaintiff was paid for furnishing this information.
"At the time said ticker machines were seized information was being received relating to horse races at the different tracks in the United States concerning the entries in said races, track odds, the names of the winning horses, and the horses that placed and showed; that at the time said machines were seized there were two operators relaying the information to the various places above mentioned by direct telephone wire, beginning with the information as to the condition of the track, the horses in each race, the names of jockeys, etc., with a continuous line of information until the races had been completed showing which horses were leading at the quarter, the half, at the stretch and at the end of each race. The information so relayed by these two operators
was received in the places above mentioned and posted on a blackboard so that customers could see the entries, odds, etc., and in some of the places a loud speaker was used to announce to the customers all of the information so received from the ticker machines.
"The two machines involved in this action were seized by the defendants, their agents, or deputies, on the 7th day of August, 1943, the said officers seizing them purporting to act under and by virtue of the authority of a search and seizure warrant, a copy of which is attached hereto and made a part hereof. The warrant attached hereto constitutes the complete record of proceedings had in connection with the issuance of said warrant. No affidavit of probable cause was filed with or exhibited to the justice of the peace issuing said warrant. No copy of said warrant was left with the plaintiff. No receipt for the property taken was given to him. The property seized was removed by the defendants from Garland county and was taken to the State Police headquarters in Pulaski county, Arkansas, and is at the present time held it said place. At the time suit was filed, no return had been made on said warrant by the officers seizing the property. Hot Springs, Arkansas, has a municipal court created by Act No. 2 of the Acts of 1917.
"The plaintiff was not arrested, and up until the present time has not been arrested or charged with the violation of any law whatsoever.
"The machines which were seized are ordinary telegraph instruments designed for the purpose of receiving telegraphic information by wire and transcribing same. The machines seized in this case are no different from any other telegraph ticker machine, and the machines may be exhibited to the court as evidence.
"No gambling of any kind was carried on in the premises occupied by plaintiff and in which the machines seized were located. The plaintiff does not own or operate any gambling establishments, whatsoever, and has no connection with any gambling establishments, except as hereinbefore stated. The consideration paid to plaintiff by his customers is in payment for information furnished
and the amount thereof is a certain fixed amount and does not depend upon the success or failure of any business conducted by his customers.
"In the operation of his business the plaintiff invited the public generally to come and patronize his printing business. At the time the machines were seized his printing business was in operation, the door from Ouachita Avenue to plaintiff's place of business was open, his business was being operated, and the officers walked in the front door and to the machines without the use of physical force. The machines in question were not visible from the street or to the public in general, and were in a room separate and apart from that occupied by his printing establishment."
The first question presented is: Were the teletype machines, on the facts, gambling devices and subject to seizure and forfeiture?
It must be conceded that the teletype machines were not gambling devices, per se. It does not follow, however, that they would not become gambling devices, under our statutes, when used for gambling purposes.
Section 3320, Pope's Digest, of our criminal law on gambling provides: "Every person who shall set up, keep or exhibit any gaming table or gambling device, commonly called A. B. C., E. O., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised, or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, etc."
Section 3322, Pope's Digest, provides: "Every person who . . . shall be interested, directly or indirectly, in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing money or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined
in the state penitentiary for not less than one year nor more than three years."
Section 3327 makes it the duty of the justices of the peace, on information given or on their own knowledge, or where they have reasonable ground to suspect, to issue their warrant to some peace officer, directing in such warrant a search for such gaming tables or devices hereinbefore mentioned or referred to, and directing that, on finding any such, they shall be publicly burned by the officer executing the warrant.
And 3335 provides: "The judges of the several courts in this state shall, in their construction of the statutes prohibiting gaming, construe the same liberally, with a view of preventing persons from evading the penalty of the law, by changings of the name, or the invention of new names or devices, that now are or may hereafter be brought into practice in any and all kinds of gaming, and all general terms of description shall be so construed as to have effect and include all such games and devices as are not specially named, and in all cases, when construction is necessary it shall be in favor of the prohibition and against the offender."
This court in Fox v. Harrison, 178 Ark. 1189, 13 S.W.2d 808, held in effect that a place operated for the purpose of permitting betting on horse races is a gambling house, although the issue in that case was dog racing. See, also; Albright et al. v. Karston, ante, p. ____,176 S.W.2d 421, this day decided. Section 3322, supra, makes every person interested directly or indirectly by furnishing "any articles" for the operation of a gambling house, guilty of a felony, and under 2934-5, Pope's Digest, anyone who aids, assists or abets another in the commission of a crime, becomes an accessory, or principal offender, and subject to punishment as such.
Here, the facts disclose that appellee operated, in his place of business in the city of Hot Springs, two teletype machines. Through these machines, there was transmitted, by telegraph, from a large number of race tracks throughout the United States, information on horse races being run on the various tracks. The information received
by appellee, over these machines, contained the announcement of the names and numbers of the horses entered, the jockeys and their weights, the odds on each horse, the starting of the races, the progress of the horses around the track and the winners. This information came to appellee over the machines in question by means of a ticker tape mechanism, on which was spelled out the report of the race so that appellee's operators, who sat one at each machine, read these reports, as received on the tape, into the mouthpiece of a telephone, which was connected by direct wire from appellee's place of business to the various gambling houses in Hot Springs, thereby giving to each house instantaneous reports as received. In each gambling house, these reports so received from appellee, were announced by the operator at the receiving end of the telephone, in most cases, over a loud speaker to the assembled customers of the gambling house, and placed upon a large blackboard for all to observe. These teletype machines were used by appellee primarily to furnish this information upon which bets were made, to the various gambling houses, or "bookie" establishments, as they are sometimes called. Appellee was paid for this service and he knew the use made by the gambling houses of the information which he was furnishing them from the teletype machines.
We think it clear, on the admitted facts, that appellee had deliberately converted these teletype machines to an unlawful use and purpose, thereby converting them into gambling devices "adapted, devised or designed" for the purpose of playing a game of chance, that is, betting on horse races, at which money or property might be won or lost, and, therefore, all property rights in these machines were forfeited and they were subject to seizure by appellants. The use to which these machines were knowingly put by appellee, for pay, was the principal factor in the present, most modern operation of the various gambling houses to which he furnished the service. While appellee was not physically present with the machines in question, in each of the gambling houses, we think he was constructively present with these machines, aiding and abetting the operation of these gambling
houses through the use of the machines and was equally guilty, along with the operators of the houses, of a felony.
"The question who is generally liable for . . . maintaining gambling houses . . . obviously depends upon the wording of the particular statute involved. (24 Amer. Jurisprudence, 428, 44.)
In State v. Sanders, 86 Ark. 353, 111 S.W. 454, 19 L.R.A., N.S. 913, this court said: "A gambling device is an instrumentality for the playing of a game upon which money may be lost or won; and the instrumentality is not necessarily intended solely for gambling purposes. 14 Am. Eng. Enc. Law, 684-5; 20 Cyc. 882-4. Certain gambling devices cannot be used for any other purpose, and, when designed for that purpose alone, they may be destroyed under the `burning statutes.' Garland Nov. Co. v. State, 71 Ark. 138, 71 S.W. 257. But there may be gambling devices that are no less such, although not always so used, but which, from their nature, may be used for other purposes. State v. Lewis, 12 Wis. 434. Under a kindred statute, the Alabama court said: `The statute is aimed at the use to which the table is appropriated.'"
It seems to us that the evil effects flowing from the use of instrumentalities designed for lawful use, when put to an unlawful use, would be just as great as when such machines were designed for unlawful purposes. Our lawmakers have gone far in their attempt to suppress the gambling evil and in so doing have given our enforcement officers authority to destroy the tools by the use of which gambling is carried on.
In State v. Furth, 72 Ark. 161, 78 S.W. 759, this court said: "The doctrine of what is known as the `Fish Net Case,' (Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499,38 L.Ed. 385) is justly invoked, which, in effect, decides that statutes providing for the abatement of nuisances by the destruction of the means used in carrying them on without a judicial trial, and without notice are not unconstitutional, and that a party is not by them deprived of his property without due process."
And in the Lawton v. Steele case, supra, the Supreme Court of the United States, in considering the validity
of an act of the State of New York prohibiting the taking of fish from certain waters and authorizing the summary destruction of nets and other devices for taking fish in violation of the act, said: "It (the police power) is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. . . . The legislature, however, undoubtedly possessed the power, not only to prohibit fishing by nets in these waters, but to make it a criminal offense, and to take such measures as were reasonable an necessary to prevent such offenses in the future. It certainly could not do this more effectually than by destroying the mean of the offense. If the nets were being used in a manner detrimental to the interests of the public, we think it was within the power of the legislature to declare them to be nuisances, and to authorize the officers of the state to abate them. . . . Nor is a person whose property is seized under the act in question without his legal remedy. If, in fact, his property has been used in violation of the act, he has no just reason to complain; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value."
The Supreme Court of Illinois in Glennon v. Briton,155 Ill. 232, 40 N.E. 594, held: "The purpose of the statute is to stop the unlawful and immoral practice by destroying the implements with which it is carried on. The theory with respect to the property is that no one is any longer the owner of it. The moment it is used in the unlawful business, it is liable to forfeiture, and although the owner may appear and claim it, he has no greater right in property so used than any other person. . . . For the promotion of the general welfare the state, under its police power, has the undoubted right to adopt the most expeditious, inexpensive, and effective mode of abolishing and abating the same."
As indicated, our lawmakers have made it clear under the laws which they have enacted, supra, that it is their
intention to suppress all unlicensed gambling in this state and to this end have directed that the court, in all cases wherein construction of gambling statutes are necessary, shall adopt that construction which "shall be in favor of the prohibition and against the offender."
We conclude, therefore, that the trial court was in error in holding that the teletype machines in question were not gambling devices and subject to seizure and confiscation.
The remaining question presented is: Did the appellants have authority to seize and confiscate the machines in question upon a search and seizure warrant, which was not supported by an affidavit? On the facts here, we think they were within the scope of their authority in making the seizure, and could have acted in the instant case without a search and seizure warrant.
Appellee, says appellee in his brief: "owns and operates a commercial printing establishment in the city of Hot Springs, Arkansas. He is engaged in the general printing business. As an adjunct to said business, he operates a telegraphic sports service. For this purpose he maintains in his printing shop two teletype machines."
Appellants, members of the State Police, walked into appellee's place of business, and went unmolested to, and seized the machines, which appellee was operating at the time in a room adjoining his printing business. When the machines were seized, "information was being received relating to horse races at the different tracks in the United States concerning the entries in said races, track odds, the names of the winning horses, and the horses that placed and showed. There were two operators relaying the information to the various places . . . with a continuous line of information until the races had been completed." It is clear, therefore, that appellee by the use of these machines, was aiding and abetting in the operation of the various gambling houses and committing a felony in the presence of these officers. The teletype machines in view of the use to which they were put by the appellee were gambling devices within the meaning of our statute and were subject to confiscation by the state
authorities. In these circumstances, appellants were clothed with the authority to arrest appellee and seize and confiscate the machines, since the crime was being committed in their presence.
Appellee cannot complain that no arrest was made at the time of the search and seizure. Appellants had the right to arrest, along with the search and seizure, but the right to search and the validity of the seizure did not depend on the arrest of appellee when the search and seizure were made. In State v. District Court, etc., Gallatin County, 72 Mont. 77, 231 P. 1107, (Supreme Court of Montana), it was held: "Defendant on whose premises a still and mash were seized could not complain that he was not arrested as required by Rev. Codes 1921, 11106, or that sheriff did not perform fully duties imposed on him by law."
This court, in Van Hook v. Helena, 170 Ark. 1083,282 S.W. 673, after quoting with approval from Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, said: "The protection of the search and seizure clause of the Constitution does not extend to the entry of an officer into a public place to make an arrest upon probable cause that an unlawful act is being committed there. The protection applies, not to all premises or property, but only to dwelling houses or other such private places."
We fail to find, on the facts here, that appellee's constitutional rights have been invaded. For the errors indicated, the judgment is reversed and the cause remanded, with directions to proceed in a manner consistent with this opinion.
SMITH, J., concurs.
McHANEY, J., did not participate.