Commonwealth v. Certain Gaming Implements & Personal Property

47 N.E.2d 939, 313 Mass. 409, 1943 Mass. LEXIS 714

• Court: Massachusetts Supreme Judicial Court
• Decided: March 30, 1943
• Status: Published

Opinion

Lummus, J.

Upon a complaint to a District Court, a search warrant for gaming implements was issued under G. L. (Ter. Ed.) c. 271, § 23, as amended by St. 1934, c. 235, § 3, and c. 303, § 1. Upon the warrant certain persons, including Joseph Hotze, were arrested, and certain gaming implements and personal property were seized, on August 31, 1939. On January 23, 1940, the arrested persons entered pleas of guilty in the Superior Court. On March 27, 1941, proceedings for forfeiture of the seized property were begun. On April 12, 1941, Joseph Hotze appeared as claimant, alleging that he was the owner of the property. On appeal to the Superior Court, a judgment for forfeiture was entered on November 13, 1942, from which the claimant appealed to this court. G. L. (Ter. Ed.) c. 276, § 8; c. 278, § 28.

The case was submitted to the Superior Court upon agreed facts in the nature of a case stated. Compare Commonwealth v. Gordon, 159 Mass. 8.

The first contention of the claimant is that the place where the property was seized was not resorted to for the purpose of unlawful gaming. But the agreed facts recite that the property was seized “on premises in which illegal gaming or lotteries were being carried on,” which premises' “were being used in the setting up and promoting of a lottery.”

In the agreed facts it was set forth, subject to the question whether the evidence was admissible, that the income tax departments of the Commonwealth and the United States had requested the retention of the seized property for use in contemplated prosecutions of the arrested defendants for violations of the income tax laws. By G. L. (Ter. Ed.) c. 276, § 3, as amended by St. 1934, c. 340, § 15 (see also G. L. [Ter. Ed.] c. 271, § 23, as amended by St. 1934, c. 303, § 1), seized property or articles are to be kept “so long as necessary to permit them to be produced or used as evidence on any trial.” The judge rightly ruled that this evidence would not justify the retention of the seized property. Stricker v. Scott, 283 Mass. 12, 14. The words “any trial” in our opinion do not extend to trials not involving gaming houses or gaming or the forfeiture of property seized.

The forfeiture was seasonably ordered. The statute provides that “as soon as may be afterward” — that is, after “any” trial, including the trial in forfeiture proceedings— the property seized shall be forfeited. G. L. (Ter. Ed.) c. 276, § 3, as amended by St. 1934, c. 340, § 15. This is not a statute of limitation. It relates to the termination, not the commencement, of forfeiture proceedings. The agreed facts in this case were filed on October 15, 1942. No later than November 13, 1942, less than a month thereafter, the case was tried and the property adjudged forfeited. We cannot say that the forfeiture was not “as soon as may be” after the trial. The money seized as well as the other property was properly forfeited. G. L. (Ter. Ed.) c. 276, § 1, as amended by St. 1934, c. 303, § 2. G. L. (Ter. Ed.) c. 276, § 7, as amended by St. 1934, c. 235, § 2.

Judgment affirmed.