The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1879-12-03
GAMBLING APPARATUS.
Judge Holman Decides that No Right Of
Property Exists Therein.
The Opinion of the Court in the Case of Hogan
mccarthy vs.. the City Et. Al. il Against
the Plaintiff.
Thursdays Daily.l


the Plaintiff.
Thursdays Daily.l
Yesterday Judge Holman delivered an
opinion in the case of Hogan McCarty vs..
the city OF Indianapolis. IT was a suit to
recover by action In replevin certain gam
bling tools and implements captured by the
police in a raid upon q gambling room man
aged by defendant. He was convicted in
the city court upon the charge of gambling,
and brought suit to recover on the ground
that the seizure had been made without
warrant, and that the property belonged TO
Truman Featherly, confided to his care dur
ing temporary absence of the owner.
The opinion recites that the action of the
: ter, clause nine, authorizing the Council to
= enforce ordinances to suppress gaming, to
Of gaming, etc., but it does not by its terms
provide for the destruction of such instru-
ments, and is not seif-executing. (Ridgway
VS.. West, TO Ind, BIZ An ordinance passed
under the above section directed the mayor to
upon trial, it shall have been shown that they
were used for gaming In the suspected fe /! +
sa awu IN for II IL o that
uestry all gaming apparatus found in any
building kept for gaming purposes, and
visit such places when they have reason to
believe that gaming apparatus is Kept there or
gambling permitted or carried on, and If evil
dence exists to warrant 1t, they may arrest
persons engaged and seize and destroy he ap-
paratus. Toe act is declared to be cumulative
merely, and not to repeal any existing laws,
unless clearly in conflict Herewith. Profess
houses are made feionies by the felony act, and
sections 70 and IA of the misdemeanor act re-
the plaintiff that he has been deprived OF his
property without due course OF law and with
articles CnSfO6iQ laQig
not the subject of repleyip.
, The court attaches no Importance to SO
much OF section 9, act of 1877, as vests in the
officer the right to summarily destroy the
apparatus by Them taken. Such a course would
property, and can not be suetained QSN. Y,
37S; 81 ILL.,, 1851 But aside from this observa-
ton and diiigent investigation of the author
ties, that the law in this case is with the de-
plies, and aside from all statutory enactments
and ordinances hereunder, deem the plain
wholly untenabie. In support OF this conclu-
sion the court cites at some length from two
Shsse Of s gas
t. o, German silver pieces, seized
point to- another Tor the purpose, Of being
stamped and m1lled, and to be placed in circu-
that of Willis VS.. Warner, Il Hilton, N. Y :,
$50. where a Justice of thu peace and several
Others entered a room On Broadway, New
York, and finding several persons engaged in
gambiipg arrestrd them and seizsd Quantity
custody i'' OF defendant as clerk Of the police
board. The plaintiff brought suit to recover,
as in the case at issue: Said the court: AS
issued, that fact does not aid the plaintiff.
There can be no doubt that, If,
upon entering the pre- misses, the Justice was
satisfied that the persons therein were engaged
in gambling, he could have right to arrest
A constable by the original and Inherent
power he possesses, may for treason, felony,
less than felony, committed in his presence,
apprehend the supposed offender VIRTUE
vs.. Deacon s q r, a: Knott vs.. Gay, /
Root. 66.) The rule deuucibe from the author
arrest another who has committed e felony,
either at the time 1t is committed or subse
quent thereto ana that a; Justice OF lne peace
warrant, not only arrest a person for felony,
but also for an; any breach iao OF the peace
IN his presence. Said the court further:
at is the policy of the law to destroy
gambling apparatus, and the loss sustained
by the owner is part of the punishment in
ficted for the of1ense, which is considered by
auences to sosiefy. Il Russell, 4os: Roscoe's
Grim. E., Al "a The right to destroy it and
the right to detan Ii until after the trial OF the
alleged defense is one vested in the public
authorities, and is not in conflict with any
Be taken as a punishment for an ofiense'
(See opinion of Comstock, Illustrating this
principle in Wynehamer vs. the people, 8 Ker-
In the case at bar, plaintiff seems to have
wholly overlooked the fundamental rules OF
the law. that one shall SO use his own as not
to invade the rights of others, and that no
citizen owns his property in that absolute
sense which takes It without the reach and
control of the government under which he
qualified by the inherent right OF society to
protect itself, and of the Legis ature, in its
care for the public welfare, to regulate it
Beck, j., 81 Iowa, 250) Says Johnson. J., in
Wynensmer VS. the people, ID N. Y, 1856:
imposs by way of penalty the forfeitures upon
judicial sentence, of property kept or sought
TO be used contrary to law, can not at this day
= and form of punishment for offenses against
the law, and has been too long and too stead
lily exercised without question to be now in
volved in doubt" {.
Law, vol. /, Sl7; Cooley's Const. Lin, IDA, 36
SOS; Cooiey's FORTS, 296, 459; 45 Cal, 1885, and p
Michigan, US. That the defendants were au
thOrizsd to make the arrest without q warrant
the abatement of nuisances, and the depriva
ton of property thereby, see the learned opin
ion of Judge sutherland, in Coe vs. Schultz, A
Barb, s. See generally Cooley Q. L 572, 577
/ am of the opinion, Them that the plaintiff
can not recover, because: 49,
J.. Upon the facts proved the property wa
: forfeited under the statute and ordinance.
e. Upon the facts proved the plaintiff hat
+. nc property in the gaming apparatus which
the law can recognize.
3. The property must be deemed custodi,
legis, to be held and used as evidence ON tn
and the plain tin arrested.
Cropsey 4 Wright, for the plaintiff, gave no
:. tice of an appeal.
: A Dog Not to be Awakened.
The other night 4 nervous man IN Bur