[18] This case is an outgrowth of the consolidation of three cases in the lower court. The question to be determined is whether the 300 slot machines seized by the sheriff under proper search and seizure warrants can be confiscated under Title 21 O.S. 1951 Sections 969 [21-969], 972 [21-972], 973 [21-973], 974 [21-974] and 976 [21-976].
"§ 969. Possession, sale, or lease of slot machines or punch boards prohibited. —
"It shall be unlawful for any person to have in his possession any slot machine or punch board, or sell or solicit the sale, or take orders for the sale of, or lease or rent any slot machine or punch board in this State, * *."
"§ 972. Slot machines and punch boards declared gambling devices — Public nuisance — Abatement. —
"Every slot machine and every punch board, as defined in this Act, is hereby declared to be per se a gambling device, and each is hereby declared to be a public nuisance, * *."
"§ 973. Seizure of slot machines and punch boards — Confiscation, procedure for. —
"Every sheriff * * * in this State is hereby required to seize every slot machine * * * together with all money contained therein or used in connection therewith, * * *: and immediately following such seizure, such officer shall report same and give all facts in relation thereto to the county attorney of the county in which the seizure was made; and such county attorney shall, immediately following such report, file an application in the district court of his county in the name of the State of Oklahoma against the slot machine or punch board seized, * * *, and a prayer for judgment confiscating said slot machine and punch board and money * * * seized, and ordering the immediate destruction of said slot machine or punch board by the officer seizing the same * * *."
"§ 974. Officers' duties under act — Prosecutions. —
"It is hereby made the duty of every sheriff * * * to diligently do and perform the acts required under this Act * * *; and it is hereby made the duty of every county attorney to diligently do and perform the acts required of him under this Act and to diligently prosecute any person violating any of the provisions of said Act."
"§ 976. Failure of officers or prosecutor to perform duties under act — Removal — Punishment. —
"Any sheriff * * * or county attorney who shall fail to diligently do or perform the acts and duties required of him under this Act, in that he shall knowingly allow the violation of this Act * * *, shall be guilty of wilful neglect of duty and shall be removed from office * * *."
[19] The facts are that 100 of the machines were found in two buildings in Colbert, twelve miles southwest of Durant, 38 in one building and 62 in the other. The other 200 were in the Taylor warehouse located in Durant. None of the machines seized in Colbert were tagged or crated. *Page 340 A part of the 200 seized in Durant were crated and bore tags showing billing to Taylor warehouse, Durant, Oklahoma, from Corpus Christi, Texas. Those not crated had no indication of any destination placed thereon.
[20] When these machines were seized they were claimed by a number of persons, to-wit: A.C. Dudley, C.W. Martin, W.W. McCallum, Weldon Denton, T.H. Barnes, Buck McGraw, Leonard Kollman, Wallbox Sales Company, a corporation, Morris Ledecker and Boyd Wylie, when they went into the United States District Court of the Eastern District of Oklahoma, and attempted to restrain the officers from making disposition of the same.
[21] It appears from the record that the machines were hurriedly moved out of the State of Texas because the legislature of that state had made the ownership of such machines in the State of Texas a felony, and they did not care to run the risk of being caught in possession of the machines in that state.
[22] The entire record shows that these machines were moved from the State of Texas and stored in the State of Oklahoma, and that none of several claimants had at that time any idea that they would be shipped to Georgia, as testified to, or any other state. The owners were hurriedly removing these machines from the State of Texas in order to evade the law and dodge the penalty that they might suffer if they were found with the machines in their possession in the State of Texas.
[23] It is my belief, as these machines were found at rest in Oklahoma, without any label or tag or indication of any kind that they were in transit to some other state, the sheriff was acting under the mandates of our statute which required him to seize the machines and inform the County Attorney, whose duty it was to present the matter to the District Court and ask for an order to destroy said machines. If it be conceded that the owners had in mind (which of course they didn't) to dispose of the machines whenever and wherever they could find a place to put them, that does not relieve them of liability and does not deny the officers of the right to seize the machines as contraband property and destroy them, as required by law.
[24] I realize that this court is not bound by the decisions of the Criminal Court of Appeals of the State of Oklahoma, but the decisions of the Criminal Court of Appeals are persuasive and throw considerable light on the question involved as to the law in this case.
[25] In the case of State ex rel. Brett, County Attorney, v. Four Bell Fruit Gum Slot Machines, 196 Okla. 44, 162 P.2d 539, 541, it held that such machines as the ones in question in this case were illegal slot machines, as defined by our law, and were gambling devices and contraband and not capable of ownership or possession in Oklahoma, and that officers in possession of same, seeking an order to confiscate such machines, had no alternative, and the court had no alternative but to order their destruction. In the body of that opinion, we find the following:
"Section 973, supra, provides for a court hearing without a jury, which was approved as constitutional in Moore v. Brett, 193 Okla. 627, 137 P.2d 539, and expressly requires the trial court to find whether the devices being proceeded against are slot machines and expressly requiring, if the court finds that they are slot machines, that they be destroyed and the contents or things of value connected therewith otherwise disposed of. It was admitted by the Officers Club that these machines were slot machines and this being true, the statute left the trial judge no alternative than to order their destruction."
[26] In the instant case it is admitted that these machines are gambling devices, and the District Court made a finding that said machines are gambling devices after the evidence in the case had been heard, the operation of one of the machines viewed and the court had considered all of the evidence in the case.
[27] In view of the testimony and the findings of the trial court and the authorities, it is my judgment there can be no property *Page 341 right in any of the machines in question; that they are gambling devices under our statutes, and there can be no legal right of possession of them within the State of Oklahoma.
[28] I respectfully dissent.