Hall, Tomasulo and Mariano. The opinion of the court was delivered by Mariano, J.s.c. (temporarily assigned). Hall, J., concurs in this opinion. Tomasulo, J.s.c. (temporarily assigned) (dissenting).
Plaintiffs instituted suit in the Passaic County District Court against Raymond L. Rhodes, as Treasurer of the County of Passaic, for the return and recovery of monies which they claim were unlawfully taken from them by members of the staff of the Prosecutor's Office of Passaic County during a raid conducted in the early morning hours of December 6, 1953, at 43 West Broadway, in the City of Paterson, New Jersey.
All three plaintiffs admit going to the premises in question to gamble and participate as players, in an illegal gambling operation which was then and there being conducted. They had no connection whatsoever with the illegal operation other than as players.
The front entrance of the building was barricaded with a steel door and the members of the raiding party were finally compelled to force entry through a side door. By the time entrance was made by the police the game had ceased and there was no money in view on the table upon which the so-called "crap game" or "dice game" had been conducted. Fifty-two persons were found on the premises, all of whom were subjected to a search, and the monies now sought to be recovered by the plaintiffs were taken from their person by direction of the said prosecutor.
Four individuals other than the plaintiffs were subsequently indicted and plead "guilty" to the operation of a "dice game" in violation of N.J.S. 2 A:112-3. The three
plaintiffs and others were charged with the violation of an ordinance of the City of Paterson which provided that no person shall be present in any room within the City of Paterson wherein gaming is carried on, to which they entered a plea of "guilty" and were each fined the sum of $200.
The prosecutor thereafter, and in accordance with N.J.S. 2 A:152-8 et seq. , delivered the monies taken from the plaintiffs to the defendant, the County Treasurer of Passaic, who refused, upon demand, to return the sums of money in question to the respective plaintiffs.
The district court judge, sitting as judge and jury, pursuant to R.R. 4:53-1, found the facts specially and stated separately its conclusions of law thereon, and directed the entry of judgment in favor of the plaintiffs and the defendant appeals. Defendant argues that the monies on the persons of the plaintiffs at the time of their arrest, which are used or are available for use in the illegal operation, become contraband at law, thus forfeitable to the State under N.J.S. 2 A:152-7 et seq. , and that there was insufficient evidence to support the findings of the trial court, and that the verdict was contrary to the weight of the evidence.
Ordinarily money is not in itself an instrument of gambling, but is merely the stake for which men gamble; and as a general rule money is not subject to confiscation or destruction as a gambling device but should be returned to the owner. 38 C.J.S., Gaming , § 78 c, p. 136; Krug v. Board of Chosen Freeholders of Hudson County , 3 N.J. Super. 22 (App. Div. 1949); Kenny v. Wachenfeld , 14 N.J. Misc. 322 (Sup. Ct. 1936); Rosen v. Superintendent of Police , 120 Pa. Super. 59, 181 A. 797 (Super. Ct. 1935); Fairmount Engine Co. v. Montgomery County , 135 Pa. Super. 367, 5 A. 2 d 419 (Super. Ct. 1939); People v. Moore , 410 Ill. 241, 102 N.E. 2 d 146 (Sup. Ct. 1951); Albright v. Karston , 209 Ark. 348, 190 S.W. 2 d 433 (Sup. Ct. 1945); Boyle v. State , 47 So. 2 d 693 (Sup. Ct. Fla. 1950).
Money may, however, under some circumstances be used as a gambling device, as where men gamble on the
toss of a coin, and money may become subject to seizure along with regular gambling apparatus where it has become an integral part of the illegal gambling operation. 38 C.J.S., Gaming , § 78 c, p. 136, supra; Krug v. Board of Chosen Freeholders of Hudson County, supra; Kenny v. Wachenfeld, supra; Rosen v. Superintendent of Police, supra; Becker v. Farley , 137 N.J.L. 191 (E. & A. 1948); Fairmount Engine Co. v. Montgomery County, supra; People v. Moore, supra; People v. Del Mar Corp. , 65 Cal. App. 2 d Supp. 854, 150 P. 2 d 826 (Super. Ct. 1944); People v. Wrest , 345 Ill. App. 186, 103 N.E. 2 d 171 (App. Ct. 1952); Gilley v. Commonwealth , 312 Ky. 584, 229 S.W. 2 d 60, 19 A.L.R. 2 d 1224 (Sup. Ct. 1950); Commonwealth v. Certain Gaming Implements and Personal Property , 313 Mass. 409, 47 N.E. 2 d 939 (Sup. Jud. Ct. 1943); People v. Krol , 304 Mich. 623, 8 N.W. 2 d 662 (Sup. Ct. 1943); Pannulla v. Rosenberg , 171 Pa. Super. 233, 90 A. 2 d 267 (Super. Ct. 1952).
Where money is earmarked and segregated as part of an illegal gambling operation, it then constitutes a gambling device subject to seizure. Kenny v. Wachenfeld, supra; State v. Link , 14 N.J. 446 (1954); Farley v. Manning , 4 N.J. 571 (1950); Krug v. Board of Chosen Freeholders of Hudson County, supra.
Where money is not found in a gambling device, but was used per se in connection with the illegal gambling operation, it has been held that such money after seizure is earmarked and segregated, and becomes contraband as in itself a gambling device which may not be recovered by the person from whom it was taken. Kenny v. Wachenfeld, supra; ...