APPEAL from the Circuit Court of Clay County; the Hon. GEORGE
KASSERMAN and the Hon. HANBY JONES, Judges, presiding.
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
This appeal raises the question of the proper disposition of slot machines, which have been used in the commission of the crime of gambling and thus are contraband, but which, as antiques, may be capable of lawful use.
On October 20, 1978, the Illinois Department of Law Enforcement conducted gambling raids at two locations in Flora, Illinois. As a result of the raids, 11 slot machines and other gambling paraphernalia, including money changers and currency, were seized. Subsequently, certain employees of the raided establishments were charged with gambling and pleaded guilty to the charges. Their convictions were related to the use, and not mere possession, of the slot machines.
On November 13, 1978, the State's Attorney of Clay County filed a complaint pursuant to section 28-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, par. 28-5), requesting a declaration that the seized gambling devices be declared contraband and ordering that the Illinois Department of Law Enforcement deliver the devices to him "for destruction or liquidation or both by the State's Attorney as provided by law." The court entered an order finding the items seized in the raid to be contraband, ordering the devices to be turned over to the State's Attorney for destruction or liquidation, and finding the seized slot machines to be more than 25 years old, and therefore antiques.
Pursuant to the court's order, the Department of Law Enforcement, still in possession of the slot machines, filed a motion for clarification and modification of the order, which was denied. The State's Attorney then filed a supplemental petition, asserting that since the slot machines were antiques, they were not subject to destruction, and praying that he be given authority to sell the machines. An order was entered on December 11, 1978, authorizing the State's Attorney to sell the machines at a public sale.
At this point, the Department of Law Enforcement, which retained possession of the slot machines, petitioned for and was granted leave to intervene. It then refiled a motion to clarify and modify the order, seeking that the court delete language of the order which permitted the sale of the contraband. The court denied this motion, but issued a stay of its order pending appeal.
The statutes in effect at that time pertaining to gambling, defenses to gambling, and the seizure of gambling devices and funds, sections 28-1 and 28-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 28-1, 28-5) contained no reference to "antique slot machines." Such provision was added by the legislature by amendment effective January 1, 1979. As relevant to this appeal, the amended section 28-1 provides in part as follows:
"(b) Participants in any of the following activities shall not be convicted of gambling:
(7) Possession of an antique slot machine that is neither used nor intended to be used in the operation or promotion of any unlawful gambling activities or enterprise.
For the purpose of this subparagraph (b)(7), an antique slot machine is one manufactured 25 years ago or earlier." (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 28-1.)
Section 28-5, as amended, provides in part as follows:
"(a) Every gambling device which is incapable of lawful use is contraband and shall be subject to seizure, confiscation and destruction by any municipal, or other local authority, within whose jurisdiction the same may be found. As used in this Section, a `gambling device which is incapable of lawful use' includes any slot machine, and includes any machine or device constructed for the reception of money or other thing of value and so constructed as to return on chance to the player thereof money, property or a right to receive money or property.
(b) Every gambling device shall be seized and forfeited as contraband to the county wherein such seizure occurs. Any money or other thing of value integrally related to acts of gambling shall be seized and forfeited as contraband to the county wherein such seizure occurs.
(c) If, within 60 days after any seizure pursuant to subparagraph (b) of this Section, a person having any property interest in the seized property is charged with an offense, the court which renders judgment upon such charge shall, within 30 days after such judgment, conduct a forfeiture hearing to determine whether such property was contraband at the time of seizure. Such hearing shall be commenced by a written petition by the State, including material allegations of fact, the name and address of every person determined by the State to have any property interest in the seized property, a representation that written notice of the date, time and place of such hearing has been mailed to every such person by certified mail at least 10 days before such date, and a request for forfeiture. Every such person may appear as a party and present evidence at such hearing. The quantum of proof required shall be a preponderance of the evidence, and the burden of proof shall be on the State. If the court determines that the seized property was contraband at the time of the seizure, an order of forfeiture and disposition of the seized property shall be entered: a gambling device shall be received by the State's Attorney, who shall effect its destruction, except that valuable parts thereof may be liquidated and the resultant money shall be deposited in the general fund of the county wherein such seizure occurred; money and other things of value shall be received by the State's Attorney and, upon liquidation, shall be deposited in the general fund of the county wherein such seizure occurred. However, in the event that a defendant raises the defense that the seized slot machine is an antique slot machine described in subparagraph (b)(7) of Section 28-1 of this Code and therefore he is exempt from the charge of a gambling activity participant, the seized antique slot machine shall not ...