Appeal from the County Court of DeKalb county; the Hon. ROBERT
SEARS, Judge, presiding. Judgment affirmed.
JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On November 8, 1957 the State's Attorney of DeKalb County filed in the County Court of that county his petition which alleged that on October 23, 1957 the sheriff of DeKalb County seized and took into his custody a described pin ball machine from the business premises of Michael D. Conway who owned and operated a business known as Cortland Corners Tavern in DeKalb County; that said machine was used as and is a gambling device and subject to seizure, confiscation and destruction under the laws of this state.
The petition further alleged that said machine was not a gambling device per se but averred that its use was converted by the operators thereof, from amusement which rewarded the players with the right to replay to a device where the player was rewarded therefor by money or other valuable thing contrary to the provisions of [Ill. Rev. Stats.] Sec. 341, Ch. 38 of our Criminal Code.
The petition further averred that the said Conway while in possession of said machine and on October 23, 1957 plead guilty to the possession of gambling devices as so defined by Section 343 of Chapter 38 of our statute, before Arthur C. Taylor, a justice of the peace, and paid a fine and costs for the possession of said gambling device. It was then alleged that all the money contained in said machine was contraband property and subject to confiscation.
The petition alleged that Wayne Mayborn purports to have some title to said machine and money therein and prayed that the petition be set for hearing; that timely notice of said hearing be given Wayne Mayborn and Michael D. Conway and that the property may be proceeded against and upon the hearing, an order be entered directing the sheriff to (1) destroy the machine and (2) turn over to the County Treasurer the money found therein.
Defendant, Wayne Mayborn was duly notified and appeared and filed an answer in which he admitted that the sheriff had in his possession the described pin ball machine which had been taken from the tavern operated by Michael D. Conway. The answer denied that the machine was a gambling device or that the machine was used as a gambling device or that its use was converted by its owner or operator from amusement to a device used for gambling. The answer averred that Conway had no property rights therein and neither admitted or denied that Conway plead guilty to the possession of gambling devices and stated that this defendant was not informed of any charge having been made against Conway. The answer denied that the money contained in the machine was an integral part of the gambling device and averred that the machine was not used for gambling on October 23, 1957 with the knowledge of this defendant. Defendant, Conway made no appearance. The issues made by the petition and answer of Mayborn were heard by the court resulting in an order finding that the defendant property was, as alleged, an unlawful gambling device, directed the money found therein to be turned over to the County Treasurer of DeKalb County and ordered the sheriff to destroy said machine. To reverse this order Mayborn appeals.
Upon the hearing the pin ball machine in question was in the courtroom and it was stipulated that the defendant Wayne Mayborn was the owner thereof. Vernon Brandenburg testified that he was a state police officer and on October 23, 1957 had a search warrant and went to the premises of defendant, Conway, known as Cortland Corners Tavern, and there found the machine in question which he identified. This witness further testified that upon this occasion he arrested Conway, the owner of the place, under a warrant which he had charging Conway with having possession of this device. Mr. Brandenburg testified that there was no evidence at the time he seized the machine that it was being used for gambling and he and the sheriff both testified that they had never seen the machine in operation.
Officer Brandenburg further testified that after he had seized the pin ball machine he placed Conway under arrest under the warrant which charged him with having a gambling device in his possession and then waited at the tavern until the sheriff came with a truck and the machine was picked up and taken to the county jail.
Richard Robb testified that he was a sergeant of the Illinois State Police; that he was at Cortland Corners Tavern on the evening of October 23, 1957 and identified the pin ball machine which was in court as the same machine he saw at the tavern on October 23, 1957. This witness testified that he had also been at Cortland Corners Tavern between seven and eight o'clock September 23, 1957 and was then asked by the State's Attorney: "What, if anything did you do there?" An objection was interposed to this question, counsel for defendant stating that there was no allegation in the petition with reference to September 23, 1957 and that whatever was done then would be immaterial upon this hearing. In reply to this objection the State's Attorney stated that the petition alleged that this machine was used as a gambling device and "we are seeking to show when it was used and how it was used." Counsel for defendant then stated: "If the machine was used to gamble on, September 23, that would not convert it into a gambling device per se October 23rd." The court sustained the objection of counsel for defendant stating: "You don't have to go back to September 23rd and show it. September 23rd has nothing to do with it."
The search warrant issued by the justices of the peace was offered and admitted in evidence. Among other things this warrant recited that Richard Robb had filed his verified complaint charging among other things, that gaming implements consisting of pin ball machines and punch boards were concealed on the first floor of Cortland Corners Tavern. The search warrant further recited that the justices were satisfied that there was reasonable cause for issuing said warrant and directed the sheriff or any constable to search said premises in the nighttime and to bring the described goods and chattels and the person in whose possession they were found before said justices to be disposed of according to law.
The warrant issued for the arrest of Conway was also admitted in evidence. This warrant recited the filing of an affidavit by the said Richard Robb which charged the owner or agent of Cortland Corners Tavern with the offense of possession of a gambling device, "to-wit: a pin ball machine, in violation of Section 343 of Chapter 38 of the Revised Statutes of this State." The return of the officer to whom the search warrant was issued shows the seizure of "One Bally Variety Pin Ball Machine, Serial A-1973510" (which is the defendant machine) and the return of the officer to whom the warrant for the arrest of Conway was given shows Conway's arrest and that the officer brought him into the justice court at seven o'clock p.m. October 23, 1957.
The record also discloses that upon the hearing of the instant case the original search warrant was identified as People's Exhibit I and the original warrant for Conway's arrest was identified as People's Exhibit II. When offered in evidence counsel for defendant stated that he objected to the admission of these exhibits. The court inquired: "What is the basis of your objection?" To which counsel for defendant replied: "I object to the admission of the warrant, the complaint for gambling device because there is no showing that the subject of the suit here is the same gambling device that Michael Conway pleaded guilty to having kept." The State's Attorney called attention to the fact that the machine in court was identified by witnesses as the one in the Conway Tavern and that its serial number and description also appeared upon the return of the officer on the search warrant. Counsel for defendant then stated he was not objecting to the search warrant but to the warrant for the violation of the statute. This objection to this warrant was overruled and both exhibits were admitted in evidence.
It further appears from the record that when brought into the justice court the same night the pin ball machine was seized, Conway waived in writing, a trial by jury and entered a plea of guilty to the offense of possessing a gambling device. The docket of the justice of the peace before whom these proceedings were had was produced upon this hearing and without objection the entire docket entries were read into this record and it discloses that evidence was heard by the justice and that the court imposed a fine upon the defendant in the sum of $100, which amount, with the costs, Conway promptly paid.
The foregoing is a fair resume of the evidence found in this record. Counsel for Mayborn contended in the lower court and insists in this court that this pin ball machine is not a gambling device per se and that before it is subject to confiscation and destruction it must appear from the evidence that the machine had been converted to a gambling device, and that the evidence found in this record does not so show. The State's Attorney concedes that this pin ball machine is not a gambling device per se but insists that the evidence discloses that this machine had been converted to a gambling device ...