The only authority claimed by the judge for ordering the sheriff to destroy the 102 slot machines that were found in Schimpf's warehouse is Act No. 231 of 1928. I agree with Schimpf that this statute does not permit an officer to confiscate slot machines unless he finds them in operation, or unless they come to his attention while they are in operation. The meaning of the statute is expressed too plainly to admit of any other interpretation, — thus:
"That all officers of the State of Louisiana are hereby authorized and empowered, and it is made mandatory and compulsory on their part, to confiscate and immediately destroy all gambling devices known as slot machines that may come to their attention, or that they may find in operation." (Italics mine).
I would doubt the constitutionality of this statute if it purported to authorize the officers to confiscate and immediately destroy — without any process of law whatsoever — any machine that an officer might find and adjudge to be a slot machine, when it is not in operation. But the statute does not purport to authorize officers to confiscate or destroy slot machines unless they are found in operation. And, surely, the statute does not mean that, although the officers are not allowed to confiscate or destroy any slot machines except those "that they may find in operation", nevertheless *Page 555 the officers may "confiscate and immediately destroy" all "slot machines that may come to their attention", — even though the slot machines that may come to the officers' attention are not in operation.
There is an unnecessary punctuation mark in the statute — an unnecessary comma — between the phrase "that may come to their attention" and the phrase "or that they may find in operation". But I believe that the inserting of the comma was merely a matter of style of expression on the part of the author of the statute. It is not likely that he intended the comma to do such mischief as to bring about an arbitrary discrimination between the officers who "find" slot machines and those who have them "come to their attention".
Schimpf was prosecuted under a bill of information charging that he did "conduct the business of gambling by having in his possession, in a building and premises owned by him in the Town of Jonesboro, Jackson Parish, Louisiana, one hundred and two (102) mechanical devices known as Slot Machines, Pin Ball machines and other contrivances which were used or can be used, operated and gambled with for money and representatives of money and prizes and by which a person risks the loss of something of value in order to realize a profit." In answer to a motion for a bill of particulars the district attorney declared that the prosecution was under Article 90 of the Criminal Code, which reads as follows: "Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person *Page 556 risks the loss of anything of value in order to realize a profit."
Schimpf filed a motion to quash the bill of information on the ground that it did not charge him with gambling, as defined in the law under which he was prosecuted. The judge overruled the motion to quash the bill of information, and after trial convicted Schimpf and sentenced him to pay a fine and to be imprisoned in the parish jail. On appeal this court reversed the ruling of the trial judge, sustained the motion to quash the bill of information, dismissed the proceedings and ordered Schimpf discharged from further prosecution.
The reason for the judgment rendered by this court in the criminal prosecution, as stated in the court's opinion, was that the mere possession of gambling paraphernalia, such as slot machines, not "in operation", did not constitute the offense of gambling, as defined in Article 90 of the Louisiana Criminal Code. See State v. Schimpf, 203 La. 835, 14 So.2d 676, decided today, and not yet officially reported. In the course of the opinion in that case it is recited that the sheriff, accompanied by the district attorney, the assistant district attorney, and the town marshal, searched a warehouse owned by Schimpf, adjoining his residence in Jonesboro, and discovered in the warehouse, which was "closed and under lock and key," 102 mechanical devices known as slot machines, pin ball machines, and like contrivances, all of which were seized by the sheriff. And it is stated in the opinion in that case that the bill of information, charging Schimpf with conducting the business of gambling *Page 557 by having the slot machines in his possession, was filed on the third day after the sheriff discovered and seized the machines.
Schimpf, therefore, stands acquitted by this court of using the slot machines or allowing them to be used for the purpose of gambling. As the only statute which the judge invokes as his authority for ordering the sheriff to destroy the 102 slot machines — Act No. 231 of 1928 — does not allow an officer to confiscate or destroy a slot machine unless it is found in operation, there is no authority whatever in law for the sheriff to destroy Schimpf's 102 slot machines.