Colorado § 18-10-104 - Gambling devices - gambling records - gambling proceeds.

§ 18-10-104. Gambling devices - gambling records - gambling proceeds.

(1) Except as provided in subsection (2) of this section, all gambling devices, gambling records, and gambling proceeds are subject to seizure by any peace officer and may be confiscated and destroyed by order of a court acquiring jurisdiction. Gambling proceeds shall be forfeited to the state and shall be transmitted by court order to the general fund of the state.

(2) If a gambling device is a vintage slot machine and is not operated for gambling purposes for profit or for business purposes, it shall not be confiscated or destroyed pursuant to subsection (1) of this section. If a gambling device is confiscated and the owner shows that such gambling device is a vintage slot machine and is not used for gambling purposes, the court acquiring jurisdiction shall order such vintage slot machine returned to the person from whom it was confiscated.

Source: L. 71: R&RE, p. 478, § 1. C.R.S. 1963: § 40-10-104. L. 79: Entire section amended, p. 746, § 1, effective May 25. L. 88: (2) amended, p. 739, § 1, effective April 29. L. 94: (2) amended, p. 19, § 2, effective March 2.

ANNOTATION

Annotator's note. Since § 18-10-104 is similar to former §§ 40-10-13, CRS 53, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

This section does not deny due process. Walker v. Begole, 99 Colo. 471, 63 P.2d 1224 (1936).

This section is not in violation of § 25 of art. II, Colo. Const., providing that no person shall be deprived of life, liberty, or property without due process of law in the respect that no provision is made for jury trial. Kite v. People, 32 Colo. 5, 74 P. 886 (1903); Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750 (1917).

And right to jury trial does not exist. A proceeding under this section is a proceeding in rem, and the constitutional right of trial by jury does not apply to such proceeding. Kite v. People, 32 Colo. 5, 74 P. 886 (1903); Approximately Fifty-Nine Gambling Devices v. People ex rel. Burke, 110 Colo. 82, 130 P.2d 920 (1942).

Gambling apparatus and implements are treated by this section as noxious per se, and they are ordered destroyed to remove a danger imminent from their very existence, not merely to punish the owner for an unlawful use. This section strikes at the thing itself, and not at any act or intent of its owner. Newman v. People, 23 Colo. 300, 47 P. 278 (1896); Kite v. People, 32 Colo. 5, 74 P. 886 (1903); Walker v. Begole, 99 Colo. 471, 63 P.2d 1224 (1936); MacArthur v. Wyscaver, 120 Colo. 525, 211 P.2d 556 (1949).

They may be lawfully destroyed by the officers authorized thereunto, even though not used nor kept for use by the one having them in possession. Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750 (1917).

Gambling devices may legally be destroyed whether they are actually used for gambling or not. Approximately Fifty-Nine Gambling Devices v. People ex rel. Burke, 110 Colo. 82, 130 P.2d 920 (1942).

If done pursuant to court order. This section provides a means for the destruction of gambling paraphernalia, but even in such case it is to be accomplished in an orderly manner and upon the order of a court of competent jurisdiction. Houston v. Walton, 23 Colo. App. 282, 129 P. 263 (1913).

Whether machines were kept for gambling is question for court. In a proceeding to procure the destruction of gambling devices, the issue of whether the machines were kept for gambling purposes was a question of fact to be determined by the trial court. Approximately Fifty-Nine Gambling Devices v. People ex rel. Burke, 110 Colo. 82, 130 P.2d 920 (1942).

Statute providing that gambling devices are subject to seizure and may be confiscated and destroyed by court order does not require that the owner of the machine have knowledge, actual or constructive, that such machines are being used for gambling. State Dept. of Rev. v. Grooms Music Co., 721 P.2d 1225 (Colo. App. 1986).

Destruction of devices is not illegal as to person holding mortgage thereon. The destruction of gambling devices on which there was a chattel mortgage under this section is not illegal as to the mortgagee where the devices were left in the possession of the mortgagor to be used as he saw fit, the mortgagee knowing that the only reasonable use they could be put to was for gambling purposes, although the mortgagee did not actually give his consent to or know of such use by the mortgagor. Kite v. People, 32 Colo. 5, 74 P. 886 (1903).

Injunction probably does not lie to restrain seizing gaming devices used for gambling. Walker v. Begole, 99 Colo. 471, 63 P.2d 1224 (1936).

And they cannot be recovered in replevin nor damages given for injury to them. Gambling devices are things capable of no lawful use and are not the subject of property. They cannot be recovered in replevin, nor will damages be given for their loss or injury. Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750 (1917).

Applied in Sullivan v. Modern Music Co., 137 Colo. 292, 324 P.2d 374 (1958).