JESSE ALSPAUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; ELOISE ALSPAUGH, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Jesse and Eloise Alspaugh appealed their convictions for operating an illegal bolita lottery in Florida. Eloise challenged the evidentiary sufficiency of her conviction, and Jesse challenged the severity of his five-year sentence in light of his advanced age. The appellate court affirmed both convictions and the sentences imposed.
The court held that Eloise Alspaugh's conviction was sufficiently supported by evidence beyond mere association with her husband, as she was fully aware of his occupation and purposely acted in concert with him. The court also held that Jesse Alspaugh's five-year sentence is valid as it falls within the legislatively prescribed limits and does not violate constitutional prohibitions against excessive punishment.
“the mere fact of conjugal relationship of husband and wife does not, of course, make one mate vicariously liable for the criminal acts of the other; but the circumstance of her relationship to Jesse Alspaugh was not the only evidence involving Eloise Alspaugh.”
Establishes the court's rejection of guilt by association, requiring independent evidence of Eloise's participation.
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Join FLexlaw to unlock all legal intelligenceThe Orlando police observed the appellants' movements and conducted a search of their residence under a valid warrant. Officers seized paraphernalia i…
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Jesse and Eloise Alspaugh, husband and wife, were informed against and convicted in the Criminal Court of Record of Orange County, Florida, of violation of Florida Statutes, Section 849.09(1) (d) F.S.A., by conducting a “bolita lottery” within their residence. On appeal Eloise Alspaugh questions the sufficiency of the evidence against her and Jesse Alspaugh seeks a determination of undue severity of the five year sentence imposed against him in view of his age of seventy-five years. Both questions are resolved against the appellants.
The Orlando police observed the movements of the appellants for some time and searched their place of residence under a valid search warrant. The police officers found and seized certain articles and materials termed paraphernalia which led to the arrest and ultimate conviction of the appellants. The paraphernalia consisted of a short wave radio adaptable for the reception of messages from Cuba, various Spanish language books, earphones, numerous slips of paper with numbers thereon, $533.-10 in cash, and other suspect material.
At appellants’ trial an expert witness for the state described the customary manner of conducting the lottery operation known as “bolita” or “Cuba” and testified that the aforesaid paraphernalia, received in evidence, was characteristic of such a lottery. There was also testimony that during the search of appellants’ premises approximately ten incoming telephone calls sought th'e winning number and other pertinent information.
Appellant Eloise Alspaugh contends that the evidence was insufficient to convict her of conducting a lottery since it was not shown affirmatively that she engaged in the illegal operation. The mere fact of conjugal relationship of husband and wife does not, of course, make one mate vicariously liable for the criminal acts of the other; but the circumstance of her relationship to Jesse Alspaugh was not the only evidence involving Eloise Alspaugh. Her conviction and similar sentence of five years does not appear to have been based upon the nebulous concept of “guilt by association”.
The record discloses that Eloise Alspaugh was fully aware of her husband’s occupation. She accompanied him during trips around Orlando while he was paying off persons and engaging in other activities associated with the bolita operation. There was also other substantial evidence to convince the jury beyond a reasonable doubt that Eloise Alspaugh purposely acted in concert with Jesse Alspaugh and was equally guilty. See Miles v. State, 1948, 160 Fla. 523, 36 So.2d 182; Gaston v. State, Fla.App.1960, 118 So.2d 83
Appellant Jesse Alspaugh complains that the sentence imposed upon him violates Section 8 of the Declaration of Rights of the Florida Constitution, F.S.A. which forbids excessive bail, cruel or unusual punishment and indefinite sentences. The anti-lottery law here involved plainly evinces a strong public policy against the described offenses, and sentence of one to five years imprisonment is authorized. The validity of the statute is not questioned. As to the instant claim of excessive sentence, we note the rule that it is not within the historical province of the judiciary *589to create the terms of criminal sentences and that the trial court may impose any sentence within the limits validly prescribed by the legislature without offending organic law. Brown v. State, 1943, 152 Fla. 853, 13 So.2d 458, 461.
If a strict enforcement of the sentence in question should appear to endanger the life of the appellant Jesse Alspaugh, in view of his advanced age or state of health, the parole officers are the proper authorities to consider and determine that question. Chavigny v. State, Fla.App.1959, 112 So.2d 910; Stanford v. State, Fla.1959, 110 So.2d 1.
The sentences accordingly are upheld and the judgments of conviction affirmed.
Affirmed.
ALLEN, Acting C. J.,, and SMITH, J., concur.
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O'Donnell v. State, 326 So. 2d 4 (Fla. 1975)…Second District Court of Appeal, upon the authority of Brown, supra, upheld consecutive life sentences imposed for second degree murder convictions. With respect to this point, see also Walker v. State, 44 So. 2d 814 (Fla.1950); Alspaugh v. State, 133 So. 2d 587 (2d DCA Fla.1961); and Shellman v. State, 222 So. 2d 789 (2d DCA Fla.1969). We believe that the foregoing cases also are dispositive of the contention that the sentence violated appellant’s right to due process of law as guaranteed by the Constitut…
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Michell v. State of Fla. ex rel. John Thomas Callahan, Jr., 154 So. 2d 701 (Fla. 2d DCA 1963)…a sentence that is within the limits defined by statute, the only relief is before the parole authorities.” See also Chavigny v. State, Fla.App.1959, 112 So. 2d 910; Le Prell v. State, Fla.App. 1960, 124 So. 2d 18; Alspaugh v. State, Fla. App.1961, 133 So. 2d 587. Under the provisions of § 813.011, Florida Statutes, a person convicted of robbery is subject to imprisonment “for life or for any lesser term of years, at the discretion of the court.” Our attention has been directed to the Annotation in 168 A.L.…
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Amos H. Miller and Doris Miller v. State, 170 So. 2d 319 (Fla. 2d DCA 1964)…jugal relationship and the joint occupancy of premises consistent with that relationship cannot, in the absence of evidence of knowing complicity, make one mate liable for the criminal activities of the other. Alspaugh v. State, Fla.App. (2nd) 1961, 133 So. 2d 587, cert. denied Fla., 139 So. 2d 693. Cf. Vostre v. State, 1940, 142 Fla. 366, 195 So. 151; West v. State, Ga.App.1946, 74 Ga.App. 453, 40 S.E. 2d 156; State v. Bazoukas, 1939, 226 Iowa 1385, 286 N.W. 458. Amos Miller’s conviction rests on somewhat f…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 152 Fla. 853 (Fla. 1943)
- Stanford v. State, 110 So. 2d 1 (Fla. 1959)
- Chavigny v. State, 112 So. 2d 910 (Fla. 2d DCA 1959)
- Miles v. State, 160 Fla. 523 (Fla. 1948)
- Gaston v. State, 118 So. 2d 83 (Fla. 1st DCA 1960)