Hackerman v. State

223 S.W.2d 194, 189 Tenn. 130, 25 Beeler 130, 1949 Tenn. LEXIS 408
CourtTennessee Supreme Court
DecidedJuly 9, 1949
StatusPublished
Cited by9 cases

This text of 223 S.W.2d 194 (Hackerman v. State) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hackerman v. State, 223 S.W.2d 194, 189 Tenn. 130, 25 Beeler 130, 1949 Tenn. LEXIS 408 (Tenn. 1949).

Opinion

Mr. Justice iPrewitt

delivered tbe opinion of tbe Court.

Defendant, Marcus Hackerman, ivas convicted of lottery by means of a numbers game, and unlawfully carrying a pistol, with a fine of $1,000 and a 90-day jail sentence on the lottery charge, and a fine of $50 and a 90-day jail sentence for carrying a pistol; tbe two jail sentences to run concurrently.

. In June, 1947, Raymond Cannon, a constable of Davidson County, procured a search warrant from a judge of tbe General Sessions Court for tbe search of defendant’s car. Armed with this search warrant, be stopped defendant’s car on West End Avenue, in tbe City of Nashville, and there found a quantity of money, a large number of lottery tickets apparently sold to persons unknown, and other indicia used in lottery operations.

Tbe search warrant is vigorously attacked, and its legality is before us for our determination. Tbe affiant Cannon stated in the affidavit to the search warrant, that he had reason to believe defendant had in his possession [132]*132“gambling equipment, paraphernalia, adding machines, numbers tickets, numbers books, and other material used in conducting a lottery. ’ ’ The affiant further stated that “said gaming devices” were located in the automobile described therein. The information relied on for the issuance of the warrant was to the effect that defendant would meet certain Negro pickup men who would deliver to him lottery tickets and money for the day’s work, which he (defendant) would then take home in his car. The search warrant reads, in part, as follows:

“Affidavit having been made by Raymond Cannon before the undersigned Judge of the Court of General Sessions of Davidson County, Tennessee, that Marcus ITackerman unlawfully has in his possession certain slot machine(s) or gaming device(s) employed and used for gaming, contrary to the laws of Tennessee, concealed in the premises described in said affidavit and also hereafter described in said warrant, which said affidavit is based upon information which Affiant has received from a reputable and reliable person whose name and identity has been disclosed to the undersigned Judge, and which information is set forth in said affidavit.
“This is therefore to command you to make immediate search of the following described premises: a 1947 green Pontiac automobile, bearing 1947 license No. 1-38952, including all the buildings, vehicles and outhouses at said address, and on said premises for said slot Machines and Gaming devices, and if you find same you will take possession and make due return of your doings in the premises as provided by law.”
‘ ‘ This 19 day of June, 1947. ’ ’

(Italics ours.)

[133]*133The affidavit and the warrant appear on the same printed form which is generally nsed for apprehending those who possess gaming devices denounced by onr statute. Defendant contends that there is a variance between the affidavit and the warrant itself. This contention is based on several unreported cases of this Court where it was held that lottery or numbers tickets, in themselves, do not constitute a gambling device. Defendant further contends that under the ruling of this Court the doctrine of ejusdem generis should be applied in construing the term “gaming devices” as used in the face of the warrant, and since the warrant does not by express provision incorporate the details of the affidavit, it is void.

In Hampton v. State, 148 Tenn. 155, 252 S. W. 1007, it was held that the affidavit is not a part of the warrant. The Court further observed that constitutional rights were involved and the requirements of the statute should in every material detail be held mandatory.

Defendant relies upon four unreported cases of this Court: Wyndham v. State,1 Hamilton criminal; Conley v. State1 Hamilton criminal; White v. State,1 Hamilton criminal (these three filed November 27, 1937); and Keith v. State,1 Hamilton criminal (filed January 5, 1946). In all of these cases the facts were that the respective defendants were found to have in their possession pads, sheets of paper and similar articles that could in no sense, taken by themselves, be called gambling devices.

In the present case, the affidavit fully sets out the articles possessed by defendant, and his mode of operating his nefarious business. We cannot conceive how [134]*134the affidavit could be more complete and definite. The question here is whether any part of the affidavit can be looked to in determining the validity of the warrant itself.

In Ellison v. State, 186 Tenn. 581, 582-583, 212 S. W. (2d) 387, 388, this Court said: “Words should be given their natural meaning and interpretation, and simply because the instrument is a search warrant is no reason why we should look to possibilities of construction. See Douglas v. State, 144 Tex. Cr. R. 29, 161 S. W. (2d) 92.”

Bearing in mind that this is a printed form generally used in gambling offenses, the warrant itself states, “and which information is set forth in said affidavit. ’ ’ While the language of the warrant does not expressly refer to the incorporation of the affidavit in the warrant proper, it does refer to the information possessed by the affiant. We think this reference is sufficient.

In O’Brien v. State, 158 Tenn. 400, 14 S. W. (2d) 51, the Court held that the description in the affidavit was made a part of the warrant by reference; and in Minton v. State, 186 Tenn. 541, 212 S. W. (2d) 373, the Court stated that the warrant did not adopt the description in the affidavit.

In the warrant before us definite reference is made to the information possessed by the affiant. Although not expressly incorporated in the warrant, we think such reference is sufficient to direct the attention of the person executing it to such portion of the affidavit as may be referred to in the warrant proper, and to authorize him to use the same to strengthen the inadequacy of o the warrant itself. When this reference is made, we can then look to the whole instrument, and when this is done, [135]*135the. case presents no difficulty and shows that defendant was gnilty of violating our lottery statute ("Williams’ Code, Section 11302).

The cases referred to above holding that lottery tickets, themselves and standing alone, are not gambling devices where one may be prosecuted under the statute (Williams’ Code, Section 11282) for their possession, are not authority for the proposition that they may not be seized under command of search warrants requiring the seizure of gambling devices.

In Rosen v. Superintendent of Police, 120 Pa. Super. 59, 61, 181 A. 797, 798, the Court said: “Money is not, ordinarily, itself an instrumentality of gambling. It may be, as when men gamble on the toss of a coin.. But usually it is the stake or profit of gambling, not an instrumentality, device, or apparatus for gambling. Cards, dice, roulette wheels, slot machines, punch boards, certain kinds of boards or tables, lottery tickets, policy slips, ‘numbers’ books and slips are among the common forms of gambling devices and apparatus.”

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Bluebook (online)
223 S.W.2d 194, 189 Tenn. 130, 25 Beeler 130, 1949 Tenn. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackerman-v-state-tenn-1949.