
    Robert L. Willis v. Charles J. Warren.
    No action can be maintained for the recovery of any gambling apparatus or device, seized by a public officer upon a Charge that they are kept or used for the purpose of gambling.
    A police justice, without warrant, entered the premises of Willis, and, finding several persons engaged in playing cards, arrested them on a charge 'of gambling, seized the gambling apparatus, and also several lewd pictures found upon the premises. The articles thus taken were placed in the custody of Warren,’ the properly clerk of the Board of Metropolitan Police Commissioners. In an action of claim and delivery, subsequently brought against Warren, to recover their possession — Held, that they were in custodia legis, and no action would lie for their rockery. The complaint was, therefore, dismissed.
    
      It seems that any person may arrest another who has committed a felony, and a jus- • tice of the peace, or constable, may also viriutc officii arrest for any offence less than a felony, if committed in his presence.
    The public exhibition of obscene pictures is an offence indictable at common law. Such pictures are regarded as a common nuisance, and should be destroyed when the fact of publication is established.
    It is the policy of the law to destroy all such articles, and the loss thus occasioned to the owner is a part of the punishment inflicted for the offence of publicly keep- • ing or exposing therm
    
      At Special Term, February 8tk, 1859.
    . MOTION to dismiss complaint. This was an action of claim and delivery, brought to recover the possession of certain gambling apparatus and obscene pictures.taken from tbe plaintiff’s premises by Police Justice Connolly, and delivered by bim to tbe custody of tbe defendant, as property clerk of tbe Board of Police Commissioners. It appeared that the justice, without any charge made or warrant issued, entered the plaintiff’s house during his absence, found several persons engaged in playing cards, arrested them for gambling, and at tbe same time seized tbe articles in question. The sheriff having taken them from the defendant, before tbeir delivery to tbe plaintiff this application was made on behalf of tbe defendant to have tbe complaint dis missed, and the articles restored to his custody.
    
      Brown, Hall and Vanderpoel, for the motion.
    
      James M. Smith, jr., and John Anderson, jr., opposed.
   Brady, J.

— Justice Connolly, attended by others, entered thé premises 581 Broadway, and there finding several persons engaged in playing cards, arrested them on a charge of gambling, as appears by the affidavit of McClelland read in opposition to this motion. It seems that in the apartment in which such persons were found at play, or on the premises, there were obtain devices, or apparatus for gambling, which were seized and placed in the custody of the defendant, who is the property clerk of the board of police, created by the act passed April 15,1857. Laws '1857, chap. 569. The plaintiff claims the apparatus so seized, and, insisting that he is entitled to have them, notwithstanding the circumstances detailed, brought this action, which is one for the claim and delivery of personal property under the Code, to obtain possession of them.

The defendant, having delivered the articles to the sheriff, moves for an order compelling their return to him, or for such' order as he may be entitled to in the premises, upon the ground that they are nuisances at common law, possessing none of the attributes of property, and that no action can be brought for their recovery.

The plaintiff, in answer to this view, insists that the seizure was unlawful, because no warrant was exhibited, and that the detention of the property is unlawful, because it is a deprivation of property without due process of law. The act against gambling, passed July 10,1851 (Laws 1851, chap. 504), and amended by the act passed April 9,1855 (Laws 1855, chap. 214), was not referred to on the argument, but reference to it, and the act of 1857, supra, creating the metropolitan police, will be necessary in considering this motion.

The twenty-fourth section, of the act of 1851 provides for the seizure of any gambling device or apparatus, by warrant to be issued upon the filing of an affidavit, stating that the affiant has reason to believe that the person charged in the complaint has upon his person, or at any other place named in the affidavit, any gambling device or apparatus) It also provides for the arrest of such person, and for the detention of the - property so taken, subject to the order of the ‘court before which such offender may be required to appear until his discharge or conviction. And further, that in case of the conviction of such person, the gambling table, device, or apparatus shall be destroyed. Section twenty-five of the same act is substantially to the f^gae effect; providing in addition, however, for the detention of the' apparatus, to /be produced on the trial of the offender;

The ninth section of the act of 1857 provides, that if the general superintendent of police shall report, in writing, to the board of police that there are good grounds for believing any house or room to be kept dr used as a gambling house or cock-pit, and if two or more householders, dwelling within the metropolitan police district, and not belonging to the metropolitan police, shall make oath, in' writing, ti/aat the premises complained of are commonly reported and believed by the deponents to be kept as a common gaming house or cock-pit, any commissioner of police may, by order in writing, authorize the general superintendent, or either deputy superintendent of police, to enter upon such premises, and take into custody all persons who shall be found therein, and to destroy all implements of gaming found therein. These statutes are not inconsistent with each other. The act of 1857 confers power upon the commissioners of police, aud the act of 1851 prescribes the duties of magistrates and police justices. The seizure complained of was made, it would seem from the papers submitted, by Justice Connolly, without any interposition or interference of or by the police commissioners.

It is alleged that no warrant was exhibited at the time of the arrest and seizure, and that allegation has not been controverted. Assuming, then, that there was no warrant issued, that fact does not aid tbo plaintiff. There is no evidence that the entry of the justice and his attendants was by force; and there can be no doubt that, if, upon entering the premises, the justice was satisfied that the persons therein were engaged in gambling, he would have the right to arrest them without a warrant. Where a felony has been committed, air arrest may be made by any individual without a warrant (Holley v. Mix, 3 Wend. 350) ; and a constable may ex officio without warrant arrest a breaker of the peace. Taylor v. Strong, 3 Wend. 384.

It is. said by Blaekstone (4th Book, page 292), that an arrest may be made by a justice of the peace without warrant, who may himself apprehend, or cause to be apprehended, by word only,, any person committing a felony or breach of the peace in his presence. The. rule laid down by Chitty (1 Vol. Crim.Law, 14 [4th Am. edition]), is as follows: “ Any person may, without warrant, apprehend and carry before a magistrate a party about to expose an infant and leave it to perish; or a person playing with false dice, or otherwise committing a fraud affecting the public.” And again, at pages 19 and 20, “That a constable, by the original and inherent power which he possesses, may, for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his presence, apprehend the supposed offender virtute officii without any warrant.” See also, on this subject, Commonwealth v. Deacon, 8 S. & R. 47 ; Knot v. Gay, 1 Root, 66 ; 2 Hawkins, c. 12, § 20.

From these authorities the rule deducible is, that any person may, without warrant, arrest another who has committed a felony, either at the time it is committed or subsequent thereto; and that a justice of the peace or constable, virtute officii, may, without warrant, not only arrest a person for a felony,, but also for any breach of the peace or misdemeanor less than a felony, committed in his presence. The arrest of the parties engaged at play, as before stated, on a charge of gambling, was, therefore, legally made. When the arrest is made, the seizure of the ■ implements is provided for by law, as we have seen, for the twofold object of using them as evidence of the charge, and that they may be destroyed if conviction follow. It is the policy of the law to destroy gambling apparatus, and the loss incurred by the owner is a part of the punishment inflicted for tbe offence, which is considered by the law most mischievous in its consequences to society. 1 Russel, 406 ; Roscoe’s Crim. E. 447. Although the act of 1857 provides for the destruction of gaming apparatus, it cannot be held to authorize such destruction until after conviction for the offence of gambling, in which such apparatus was employed ; but the right to destroy it, and the right to detain it until" after the trial of the alleged offence, is one vested in the public authorities, and is not "in conflict with any provision of the constitution. Property may be taken as a punishment for an offence (see opinion of Comstock, J., illustrating this principle, in Mynehamer v. The People, 3 Ker. 402), but not until the offence is established by conviction. "Where the offence is one which is accomplished by the use of the article forfeited, there seems to be great propriety in holding it in custodia legis until the charge is disposed of; and such is the power conferred, properly I think, in regard to gambling devices. The owner of the property thus held is not without a remedj^. He may apply to the court, in which the charge of gambling is pending, for the restoration of the property, or he may urge his trial, and thus acquire it, if the complaint be not established. It is clear, however, that he has no remedy by action against a person holding the property as the custodian of the law, while the charge remains undisposed of: — he must await its determination. For these reasons, regarding the defendant’s possession legal, and his right to such possession paramount to that of the plaintiff, I think the action should.be dismissed, and the property restored to the possession of the defendant.

In regard to the lewd pictures, the conclusion must be the same, because it is an indictable offence at common law to publish an obscene book or print, and so of any offence tending to corrupt the" morals of the people. Wharton Am. Cr. Law, l§ 2547. The public exhibition of them is an offence against society, and punishable (Sharfles v. Carn, 2 S. & R. 91), and the pictures, being regarded as a common nuisance, may and should be destroyed in tbe administration of the law, when the charge of publication or exhibition is established.

. Whether the charges made (and of which the gambling apparatus and lewd pictures are held as evidence) can be sustained or not, it is not for me to determine. That is to be done in another tribunal, and upon a very different mode of investigation. It is sufficient for the purpose of this motion, that the property sought to be recovered is properly in the custody of the law. The complaint must be dismissed.

Ordered accordingly.  