CARL COLLIER AND ANGELO D'ALESSANDRO
v.
STATE
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Carl Collier and Angelo D'Alessandro were convicted of conducting a lottery for money (Bolita). The Florida Supreme Court affirmed their conviction, holding that the indictment was sufficiently specific in alleging the time of the offense and that the evidence abundantly supported the charges.
The Court held that the indictment was entirely sufficient and met constitutional requirements. An indictment need not name a day certain but must name a time certain sufficient to protect the accused from a second prosecution for the same offense and to fully advise the defendant of the charge.
“What is required as to certainty in the drafting of an indictment is that the time be fixed in the indictment with such certainty as to protect the accused from a second prosecution for the same offense.”
Establishes the standard for temporal specificity in indictments to satisfy double jeopardy protections
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Join FLexlaw to unlock all legal intelligenceThe defendants were charged with conducting a lottery for money known as Bolita between July 1, 1933, and July 29, 1933, in Lee County, Florida. The i…
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In this case the defendants were convicted of the offense of conducting a lottery for money.
We have carefully examined the record and considered the assignments of error presented. The indictment charged as follows:
“The Grand Jurors of the State of Florida, inquiring in and for the body of 'the County of Lee, upon their oaths present that Carl Collier, Herman Cooper and Angelo D’Alessandro on the 29th day of July, 1933, at and in the County of Lee aforesaid, and at divers times between July 1, 1933, and July 29, 1933, did conduct a lottery for money and by means of a lottery did dispose of money and did sell tickets in a certain lottery for money, the aforesaid lottery being commonly known as Bolita, a further description of said lottery being to the Grand Jurors unknown; contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State of Florida.”.
Attack was made on this indictment by motion to quash and also in arrest of judgment. We hold that the indictment was entirely sufficient to charge the offense under au-thority of the opinion and judgment in the case of D’Allessandro v. State, in which opinion was filed February 27, 1934, reported 153 Sou. 95.
The evidence abundantly sustained the truth of the charge.
It is contended by plaintiff in error that the indictment is fatally defective because of the manner in which the time of the commission of the crime is alleged.
*705The Court takes judicial cognizance of the fact that the conducting of a lottery for money is a matter which may be accomplished within a short period of time, or may be spread out over a long period of time. The whole transaction may be performed within a day, or it may require months from the beginning to the end of its performance. It may be accomplished by the conducting of one game or of many games. What is required as to certainty in the drafting of an indictment is that the time be fixed in the indictment with such certainty as to protect the accused from a second prosecution for the same offense. Where a crime may be committed by the performance of several different acts in the performance of. which a number of days are used or employed the crime may be charged as having been committed on a first date and a last date and upon divers days intervening between those two dates. It is not required that the indictment name a day certain but that it name a time certain. The indictment in this case meets that requirement and by its allegations the accused is protected against a second prosecution for the same offense and is fully advised of the charge against him and as to what he is to defend against.
We have examined the other assignments of error and find no reversible error in the record.
Therefore, the judgment should be affirmed. It is so ordered.
Affirmed.
Whitfield, P. J., and Brown, J., concur.
Davis, C. J., and Ellis and Terrell, J. J., concur in the opinion and judgment.
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Citator
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Fletcher Fuller and Abner Fuller v. State, 159 Fla. 200 (Fla. 1947)…of the counts fatally defective and invalid and as a consequence the judgments of conviction entered below must by this Court be reversed. Counsel cite and rely on our holdings in Strachaan v. State, 116 Fla. 736, 156 So. 885; D’Alessandro v. State, 116 Fla. 703, 156 So. 703; Farrell v. State, 135 Fla. 736, 185 So. 873. Count 4 charges that the appellants between the 10th day of November 1943 and November 10th 1945, did transmit lottery tickets and coupons representing an interest in a lottery yet to be pl…
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Jarrell v. State, 135 Fla. 736 (Fla. 1939)…r a class of unlawful activities relating to games of chance not embraced in section 7667. In this case the counts of the indictment distinctly charge violations of Section 7667 and not Section 7669 C. G. L. ■ In Collier and D’Alessandro v. State, 116 Fla. 703, 156 So. 703, the indictment charged that the defendants “on the 29th day of July, 1933, at and! in the county of Lee aforesaid, and at divers times between July 1, 1933, and July 29, 1933, did conduct a lottery for money and by means of a lottery d…
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State v. Barnett, 344 So. 2d 863 (Fla. 2d DCA 1977)…about” a specific date have been upheld. Sparks v. State, 273 So. 2d 74 (Fla.1973). Our courts have also recognized that some crimes by their nature may be accomplished over a substantial period of time. Thus, the Supreme Court in Collier v. State, 116 Fla. 703, 156 So. 703 (1934), upheld an indictment for the conduct of a lottery alleged to have occurred on July 29, 1933, and “at divers times between July 1, 1933, and July 29; 1933.” See also Skipper v. State, 114 Fla. 312, 153 So. 853 (1934). On the othe…
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- D'Alessandro v. State, 114 Fla. 70 (Fla. 1934)