Appeal, No. 53, April T., 1964, from order of Court of Quarter Sessions of Cambria County, June T., 1963, No. D-36, in case of Commonwealth of Pennsylvania v. John Rok. Order affirmed.
W. Louis Coppersmith, Assistant District Attorney, with him Ferdinand F. Bionaz, District Attorney, for Commonwealth, appellant.
Vincent M. Casey, with him Arnold D. Smorto, and Margiotti & Casey, and Smorto & Creany, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 203 Pa. Super. Page 282]
On May 9, 1963 John Rok was arrested in the Mission Inn, a tavern in the City of Johnstown. At the time of his arrest he was seated at a table in a booth and he had beside him on his chair and on the table numerous records of numbers plays, including two books containing listings of over 300 plays each. He also had in his possession treasury tickets on which payoffs would go as high as $5,000.00. He admitted that he paid the hits of winning numbers players and he paid small treasury ticket payoffs. He stated, however, he did not use his own personal money to make these payoffs. When asked whose money he did use, he invoked the privilege against self-incrimination and refused to answer. At the time of his arrest the sum of $3,007.00 was found in various amounts in various pockets; $16.00 in change was found in his left rear hip pocket; $2,426.00 was found in a brown paper bag in one of the pockets in his trousers; five separate rolls of bills with rubber bands around them were found in different pockets of his trousers and coat. These sums were $84.00, $108.00, $200.00, $61.00 and $112.00. There were no identifying marks on any of the rolls. The money was confiscated by the officers and charges of participating in lottery and bookmaking were brought against the appellant. On June 10, 1963 he plead guilty to these charges. Subsequently he filed a petition asking for the return of $2,726.00 of the confiscated money, claiming that amount as his own personal money and not used in the illegal gambling transactions. He admitted that $282.00 was used as an integral part of the gambling transactions. The court below ordered the return of the sum of $2,726.00 to the appellant and forfeited the sum of $282.00 to the county. From this order the Commonwealth appealed.
[ 203 Pa. Super. Page 283]
The leading case on this question is Rosen v. Supt. of Police Le Strange, 120 Pa. Superior Ct. 59, 61, 62, 63, 181 A. 797, wherein President Judge KELLER, for a unanimous court, stated: "Money is not, ordinarily, itself, an instrumentality of gambling. It may be, as when men gamble on the toss of a coin. But usually it is the stake or profit of gambling, not an instrumentality, device or apparatus for gambling. Cards, dice, roulette wheels, slot machines, punch boards, certain kinds of boards or tables, lottery tickets, policy slips, 'numbers' books and slips are among the common forms of gambling devices and apparatus.
"Money may, nevertheless, be subject to seizure, along with contraband gambling devices, apparatus or instrumentalities (Com . v. Sinn, 82 Pa. Superior Ct. 482, 484; Com. V. Kaiser, 80 Pa. Superior Ct. 26, 28) when the circumstances are such that it is clearly apparent that it formed an integral part of the illegal gambling operation and, being commingled with other such money, had not, previous to the seizure, been reclaimed and taken back into his own possession by the player, nor been received and reduced to the exclusive possession and ownership of the winner, or owner of the gambling device, or proprietor of the gambling establishment. Thus money found in a gambling slot machine, when seized, may be held with the machine and be confiscated by the Commonwealth; for while it had passed out of the ownership of the players, who inserted it in the machine, it had not been reduced to the possession and ownership of the proprietor; he does not become the owner of the money while it is contained in a receptacle within the illegal and contraband gambling machine. So money found lying on a roulette wheel, or rouge et noir table, when the gambling device is seized, if so commingled that its prior ownership has been lost, may, in like manner, be subject to confiscation, Com. v. Sinn, supra, p. 484. Money received
[ 203 Pa. Super. Page 284]
for lottery tickets and 'policy' slips and from playing 'numbers,' and held awaiting the drawing of the lottery, or the determination of the winning number, if earmarked or segregated so as to be identified as part of the gambling operation, may likewise be confiscated as contraband by the authorities along with the gambling instrumentality: Appeal of Joe Curcio, 106 Pa. Superior Ct. 53, 161 A. 627. That case illustrates the distinction above made. The money which had been received from the persons who played the 'numbers' game and was being sorted into packages, at the time the place was raided, was properly seized and retained by the police authorities, but other money found in the place, which had been received from the operation of Curcio's billiard tables, and was not identifiable with the illegal lottery was rightly ordered returned to him.
"The money in the case now under consideration was taken by the police from appellant's pocket. It was not found on any gambling table, wheel or other illegal device, machine or apparatus. It could not be earmarked or identified as a stake which was being gambled for, or be segregated from the appellant's own money obtained from legal sources. If any of it had been received from an illegal source, such as gambling, it had, for the purposes of this case, been so effectually reduced ...