People v. Roll

WOOD (Parker), J. The People of the State of California, represented by the attorney general, sought a writ of mandate to compel the district attorney of Los Angeles County to deliver to the State of California the sum of $24,990.91 which the district attorney, in his official capacity, had seized as money that had been offered for distribution in violation of provisions of the Penal Code relating to lotteries. The writ was denied, and the People appeal from the judgment.

The question is whether the district attorney was under a duty enjoined by law to deliver the money to the state for deposit in the state treasury.

Section 325 of the Penal Code provides: “All moneys and property offered for sale or distribution in violation of any of the provisions of this chapter [pertaining to lotteries] are forfeited to the state, and may be recovered by information filed, or by any action brought by the attorney-general, or by any district attorney, in the name of the state. Upon the filing of the information or complaint, the clerk of the court, or if the suit be in a justice’s court, the justice, must issue an attachment against the property mentioned in the complaint or information, which attachment has the same force and effect against such property, and is issued in the same [804]manner as attachments issued from the district courts in civil cases.”

Appellant argues to the effect that since section 325 of the Penal Code provides that moneys offered for distribution in violation of the lottery provisions of the Penal Code “are forfeited to the state,” and since section 26521 of the Government Code1 places a duty upon the district attorney to prosecute forfeiture actions, the moneys should have been delivered to the state.

Respondent argues to the effect that said section 325 does not provide for an automatic forfeiture to the state, and that until the right of the state to the possession of the moneys has been adjudicated in a proceeding provided for in said section 325, no duty devolves upon him to turn the money over to the state.

The money was seized by deputies and agents of the district attorney on February 3, 1949, at the “Club Algiers,” and. at that time one Reynolds, who was the manager of the club, was arrested upon charges of violating certain sections of the Penal Code regarding lotteries. The asserted violations occurred in the presence of the arresting officers. The money was seized as evidence in connection with the charges. Thereafter, the grand jury indicted Reynolds upon charges which included conspiracy to violate certain sections of the Penal Code regarding lotteries. On June 24, 1949, Reynolds was convicted of conspiracy to violate said sections as charged in the indictment.