MARSHALL STEWART
v.
STATE
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Marshall Stewart was convicted under the second count of an information for unlawfully possessing lottery paraphernalia related to bolita (an illegal lottery scheme). The Florida Supreme Court reversed the conviction, holding that the second count failed to adequately charge the offense and that the evidence was insufficient to support conviction under the standards established in Angelo D'Alessandro v. State of Florida.
The second count of the information was insufficient to charge the offense because it failed to allege that the paraphernalia in Stewart's possession represented evidence of a share or right in a lottery scheme or that he possessed the items for conducting a lottery. Additionally, there was no evidence that the bolita balls represented a live interest in a lottery yet to be played, making the evidence insufficient to support conviction.
“The defect is that the second count of the information does not charge that the paraphernalia described therein as being in the possession of the defendant was evidence of any share or right in any lottery scheme or device.”
Identifies the critical deficiency in the information—failure to allege the necessary connection between the possessed items and an actual lottery interest.
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Join FLexlaw to unlock all legal intelligenceOn December 12, 1931, Marshall Stewart was charged with two counts: (1) promoting a lottery scheme known as bolita for money, and (2) unlawfully posse…
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— The writ of error here is to a judgment of conviction under a second count of an information, which information was as follows:
“In the Name and by the Authority of the State of Florida, Manuel M. Glover, County Solicitor for the County of Polk, prosecuting for the State of Florida in said County, under oath, information makes that Marshall Stewart of the County of Polk and State of Florida, on the 12th day of December in the year of our Lord, one thousand nine hundred and thirty-one in the County and State aforesaid did unlawfully and feloniously promote a certain lottery, which said lottery was then and there for money, and which said lottery is commonly known as bolita, a more particular description of which lottery is’ to the County Solicitor unknown, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Florida.
“Manuel M. Glover, County Solicitor for the County of Polk, further prosecuting for the State of Florida in the said County, under oath, further information makes that Marshall Stewart, of the County of Polk, and the State of Florida, on the 12th day of December, in the year of our Lord One Thousand nine hundred and thirty-one, in the County and State aforesaid, did unlawfully and feloniously have in his possession lottery halls in the lottery scheme, to-wit: lottery scheme for money, commonly known as' bolita, a more particular description being to the County Solicitor unknown, contrary to the form of the statute in such cases *546made and provided and against the peace and dignity of the State of Florida.
“Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Florida.”
It will be observed that the information is in two paragraphs and, while the counts are not numbered, the second paragraph appears to have been intended for a second count in the information.
The verdict of the jury finding the defendant guilty under the second count of the information is in effect an acquittal under the first count.
We hold the second count of the information not sufficient to charge the offense under authority of the opinion and judgment in Angelo D’Alessandro v. State of Florida, in which opinion was filed February 27th, 1934, and is not yet published. This count of the information is subject to the same criticism which was made by Mr. Justice Ellis of the indictment in the D’Alessandro case, supra.
The defect is that the second count of the information does not charge that the paraphernalia described therein as being in the possession of the defendant was evidence of any share or right in any lottery scheme or device. Nor does it allege that the defendant had such things in his possession for conducting any lottery or scheme for the disposal by lot or chance of anything of value.
In this case, as in the D’Alessandro case, supra, there was no evidence to show that the bolita balls found in the possession of the defendant represented a live- interest in a game or lottery yet to be played. Therefore, it appears that under the holding of this Court in the D’Alessandro case, supra, the evidence submitted in this case was not sufficient to constitute a basis for conviction and on authority of the *547opinion, and judgment in that case the judgment here under review should be reversed and it is so ordered.
Reversed.
Whitfield and Terrell, J. J., concur.
(concurring). — I think the evidence is quite sufficient to sustain a verdict of guilty. But the information on which the conviction was had being bad, the judgment must be reversed.
Davis, C. J.
(concurring). — I think the evidence is quite sufficient to sustain a verdict of guilty. But the information on which the conviction was had being bad, the judgment must be reversed.
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Lowe v. State, 116 So. 2d 254 (Fla. 2d DCA 1959)…the jury made no finding as to the first count. It is well established in Florida that such a result is the equivalent of finding the defendant not guilty under that count. Barrington v. State, 1940, 145 Fla. 61, 199 So. 320; Stewart v. State, 1934, 114 Fla. 544, 154 So. 322; and Salon v. State, 1916, 70 Fla. 622, 70 So. 603. In consequence, the appellant was found not guilty of the charge of manslaughter through culpable negligence. Where death of any human being is caused by the operation of a motor vehi…
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Smith v. United States, 105 F.2d 778 (D.C. Cir. 1939)…y ticket would satisfy, the statute. Cf. France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595; Francis v. United States, 188 U.S. 375, 23 S.Ct. 334, 47 L.Ed. 508. And see D’Alessandro v. State, 114 Fla. 70, 153 So. 95; Stewart v. State, 114 Fla. 544, 154 So. 322. But in this instance the coupling of the old' with the new could not have influenced the verdict, since the evidence establishes that the tickets in appellant’s possession at the time of his arrest were tickets for use in the future fo…