IN RE SEARCH WARRANT SEIZURE OF SLOT MACHINES WITH OTHER PARAPHERNALIA IN PASAY CITY,
SIXTO MAGDALUYO, CARLOS MAGDALUYO and RODOLFO TAYLAN, movants-appellees,
vs.
THE ACTING DIRECTOR, NATIONAL BUREAU OF INVESTIGATION, oppositor-appellant.
Appellant seeks a reconsideration of the decision of this Court in the above-entitled case upon the ground that the ruling therein made is a complete reversal of the view taken in Uy Ha vs. City of Manila (L-14149, May 30, 1960); that the slot machines in question are gambling devices the operation of which constitutes a violation of Article 195 of the Revised Penal Code punishing gambling; and that said slot machines are illegal per se.
1. The case of Uy Ha vs. City of Manila (L-14149, May, 30, 1960), relied upon by appellant, does not support his pretense for:
(a) In the case cited there was an ordinance in effect prohibiting "the installation and/or operation of ... 'pinball' machines", the legality of which ordinance was contested by Uy Ha, but upheld by the Court, as a valid exercise of the authority of the City of Manila, under the general welfare clause found in its charter, whereas the ordinance involved in the case at bar expressly authorizes the operation of the slot machines in question;
(b) In the Uy Ha case this Court quoted with approval the view that "a slot machine is not per se a gambling device, since it may be used and played upon for innocent purposes" and that the "use to which it is put must determine its character", as set forth in Heartley vs. State (157 S.W. 2nd 1, 178 Tenn. 354), applying the doctrine laid down in Ex parte Overby (279 P. 523, 524, 43 Okl. Cr. 400, 39 Word and Phrases, p. 519);
2. In Philipps vs. Municipal Mayor (G. R. No. L-9183, May 30, 1959), cited in appellant's brief, there was evidence regarding the nature of the slot machines involved therein as gambling devices; but not such evidence has been introduced or sought to be introduced in the case at bar. In Soper vs. Michal (123 Md. 542, 91 Atl. 684, LRA 1915A 232), it was held, reiterating the view express in Wagner vs. Uphsur (95 Md. 519, 52 Atl. 509, 92 Am. St. Rep. 412), "that articles or property that may or may not be used for legal purposes cannot be seized until it has first been established that the article was procured, held or used for an illegal purpose" and "that in order to establish that the article was designed to be put, has been put, to an illegal use, there must be a proceeding in a court of criminal jurisdiction ...;
3. No such proceeding has taken place in connection with the slot machines involved in the present case. Worse still, no such proceeding is seemingly contemplate to be instituted in relation thereto. Although appellant maintains that the operation of said slot machines constitutes a crime:
(a) The special Prosecutor of the Department of Justice in charge of the case in the lower court declined to file any information against the owners and/or operators of said slot machines, upon the theory that they had committed no criminal offense, and, accordingly, recommended, that said machines be released and returned to its owners;
(b) Acting favorably upon this recommendation, the Secretary of Justice, in his letter to appellant herein, dated September 2, 1959, ordered him to return said machines "no criminal case having been filed in connection with their possession and operation" and "inasmuch as no further action is contemplated by this Office or any prosecuting agency in connection with them";
(c) Although this order was suspended upon the suggestion of appellant herein, to forestall any possible liability for contempt of court — should the release be made without express authority of the court that issued the search warrant pursuant to which said slot machines had been seized — it would seem clear that the Department of Justice still intends to file no action against the owners of said machines, for no such action has been instituted despite the lapse of about five (5) years since the seizure took place, on June 3, 1959, notwithstanding the request, made by counsel for the owners of said machines, in a letter to the Secretary of Justice dated July 5, 1959, to the effect "that the NBI officers concerned should be directed to act promptly — either to return the properties to their owners or to institute such action which they may deem proper — in order that the owners will have the opportunity to protect their rights and obtain redress of the wrong done against them;"
4. Appellant would have the court order, in effect, the forfeiture of confiscation of the slot machines in question without a proceeding appropriate therefor. In Woods vs. Cottrell (55 W. Va. 476, 47 SE 275, 65 LRA 616, 104 Am. St. Rep. 1004, 2 Ann. Cas. 933), the Court had the following to say:
... We think that whether the machine shall be burnt or released depends on whether the accused is guilty. If not guilty, he is not himself to be punished, neither is the machine to be burnt, and as only the trial court can determine his guilt, so only it can condemn the machine to be burnt. If the party is guilty, destruction of the machine follows the ascertainment of his guilt; if acquitted, judgment of restitution to him of his property follows. Though the thing be plainly an instrument of gaming under the statute, yet if its owner be acquitted of using it for the purpose, it cannot be destroyed, as it is only instruments actually used and kept for gaming that are thus condemned to destruction. (Emphasis supplied.)
In Church vs. Goodnough (14 F. [2d] 432, 434), it was held:
When the goods seized are not in themselves subject to condemnation except when intended or used for illegal purposes, judicial proceedings for forfeiture, which shall give notice to claimants and afford them an opportunity to show that condemnation is not justified, seem necessary for due process of law. (Emphasis supplied.)
To the same effect is Robonson vs. Inches (220 Mich. 490, 190 NW 227, 228), from which we quote:
... while the officers had a right to seize the money to be used as evidence, it was their plain duty to return it when complaint was neither made nor contemplated. (Citing Newberry v. Carpenter, 107 Mich. 573, 65 N.W. 530, 31 L.R.A. 163, 61 Am. St. Rep. 346; Taylor v. Circuit Judge, 209 Mich. 101, 176 N.W. 550, and sections 15880-15883, Comp. Law 1915) (Emphasis supplied.)
5. Although the operation of slot machines in the Philippines may — under certain conditions, the existence of which has not been established in the case at bar — constitute gambling, the latter is illegal not per se, but if and when prohibited by statute;
6. There can be no doubt but that, under the theory preventive justice, the state may by law prohibit and punish such things as it may deem inimical to the common good, such as lottery lists, tickets and advertisements, and papers and other matters containing letters, figures, signs or symbols which pertain to or are in any manner used in the game of jueteng or any similar game, as well as instruments or implements intended to be used in the commission of the offenses of counterfeiting or falsification, the possession of which is punished in the Revised Penal Code (Articles 176, 195[c] and 196), but neither said Code nor any other law punishes the possession of slot machines of any kind whatsoever. Thus, in Mullen vs. Mosely (12 L.R.A. [N] 394), State vs. Soucie's Hotel (95 Mo. 518, 50 Atl. 709), and Police Commissioner vs. Wagner (93 Md. 182, 48 A 455, 52 L.R.A. 775, 86 Am. St. Rep. 423) — cited in petitioner's brief — the theory preventive justice was applied to justify the summary abatement of the objects involved therein, as authorized by a statute declaring said objects noxious per se. Upon other hand, in McConnell vs. McKillip (99 N.W. 505), involving the seizure by a game warden of three (3) shotguns used in hunting chicken in violation of the game law, which provided for the forfeiture of said guns to the state, it was held that such forfeiture may take place only upon conviction of the user of the guns, and that otherwise he was entitled to recover the latter in an action for replevin; and
7. If appellant still believes, as he claims, that the operation of the slot machines in question is violative of a criminal Law, his remedy is obvious — to proper representations with the Department of Justice, the views of which thereon are binding upon him (Sections 79[C] and 83, Revised Administrative Code), for the filing of the corresponding informations by officers of said Department.
WHEREFORE, the motion for reconsideration is hereby denied.
