People Ex Rel. Wayne Prosecuting Attorney v. Bitonti

On September 14, 1942, defendant, the owner of a 1941 Ford automobile, loaned said vehicle to a friend, one Benny Kuznicki. While using the car, Kuznicki was stopped by the police for a traffic violation. At this time, the officers noted a quantity of mutuel betting tickets on the seat beside him and some protruding from his shirt pocket. He was arrested for and pleaded guilty to possession of the tickets in violation of the statute. See Act No. 328, § 306, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-306, Stat. Ann. § 28.538). The record also shows that on September 17, 1942, he was arrested again for the same offense, but not while using defendant's car, and pleaded guilty to the charge. On October 14, 1942, the prosecuting attorney filed the bill of complaint herein pursuant to the provisions of Act No. 389, Pub. Acts 1925 (2 Comp. Laws 1929, § 9093 et seq. [Stat. Ann. § 18.901 et seq.]). The trial court entered a decree ordering a sale of the automobile in accordance with section 12 of *Page 117 the act (2 Comp. Laws 1929, § 9104 [Stat. Ann. § 18.912]), and defendant appeals therefrom. Section 1 of the act provides: "Any building, vehicle or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, storing, possessing, transporting, sale, keeping for sale, giving away, bartering, furnishing or otherwise disposing of any vinous, malt, brewed, fermented, spirituous or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating is hereby declared a nuisance and the furniture, fixtures and contents of any such building, vehicle or place, and all such intoxicating liquors therein are also declared a nuisance, and all such nuisances shall be enjoined and abated as hereinafter provided. Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance." Defendant claims that the provision does not authorize the confiscation of a motor vehicle under the circumstances of this case, and argues that the statute, enacted when the transportation of intoxicating liquor was illegal, was intended to be applicable to motor vehicles only in such instances. Reduced to simplicity as far as this case is concerned, it is provided, that, "Any * * * vehicle * * * used for the purpose of * * * gambling, or used by * * * disorderly persons * * * is hereby declared a nuisance and * * * shall be enjoined and abated as hereinafter provided. Any *Page 118 person * * * who shall own, lease, conduct or maintain any * * * vehicle * * * used for any of the purposes or by any of the persons above set forth * * * is guilty of a nuisance." As to the method of conducting this particular type of gambling, the evidence supports the following finding of the trial court: "The particular gaming method disclosed by the proof did not involve a simple momentary procedure; it was complicated and protracted. Gambling solicitors visited a large number of places where patrons wrote out their wagers on slips of paper. This was accomplished in barber shops, restaurants, bars, gas stations and other business establishments throughout the city. These memoranda were collected by automobile and transported sometimes directly and sometimes indirectly to the headquarters of the gambling syndicate. At a given hour later in the day the winners were determined, the cash was placed in pay-off envelopes and again by automobile distributed to the various winners. It is apparent that the use of automobiles was an indispensable part in the consummation of the gambling transaction." The statute is clear and unambiguous. It is aimed, among other things, at the use of a motor vehicle for gambling purposes, and is not to be restricted in its application as defendant would have it. Kuznicki was apprehended with a large number of the tickets in his possession while operating the automobile. While the charge against him was possession of the tickets, rather than engaging in the gambling operation, the facts support the reasonable inference that he was engaged in the pursuit of the illegal business at that time, and that the car was then being used in the furtherance of such illegality. This use was as clearly for gambling purposes as *Page 119 though the car had been parked in a fixed location and a gambling device operated therein. It can further be said concerning the applicability of the statute that the enactment is also pointed at the operation of a motor vehicle by a disorderly person. As the facts support the inference that Kuznicki was engaged in an illegal operation or business, he was a disorderly person (see Act No. 328, § 167, Pub. Acts 1931, as amended by Act No. 84, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 17115-167, Stat. Ann. 1942 Cum. Supp. § 28.364]), and such use was also within the prohibition of the statute. The bill of complaint alleged that defendant knowingly permitted the use of the vehicle for gambling purposes, and defendant complains because the proofs did not show knowledge by him of such use. Section 9 of the act (2 Comp. Laws 1929, § 9101 [Stat. Ann. § 18.909]) obviates the necessity of such proof. Failure of the evidence to support a superfluous allegation was not fatal to plaintiff's case. Defendant also claims that proof of a single instance of a prohibited use was not sufficient to justify a finding that the vehicle was a nuisance. With this position, we agree. A nuisance involves the idea of repetition or continuity, and is not to be predicated upon proof of a single isolated prohibited act. See 46 C.J. p. 679; 39 Am. Jur. p. 303; Webb v. United States (C.C.A.), 14 F.2d 574 (49 A.L.R. 612). True, in some cases, a nuisance use of premises has been found, such as liquor law violations, where a single sale was involved, yet, in these cases, other facts were present from which it could be reasonably inferred that the unlawful act was habitual in nature. Here, no other facts are present from which it can be inferred that the vehicle was used for gambling as a common practice. *Page 120 We have but a single violation which, standing alone, we hold to be insufficient as a foundation for declaring the existence of a nuisance. The decree should be reversed and one should be entered in accordance herewith. No costs should be allowed. WIEST and SHARPE, JJ., concurred with CHANDLER, J.