ABE COHEN AND MILTON SAMUELS, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Cohen and Samuels were convicted of maintaining a gambling room in violation of Florida law. The appellate court reversed their convictions, finding the evidence insufficient to prove the essential element that gambling was 'habitually' conducted at the premises, as required by controlling precedent.
The convictions are reversed because the evidence is insufficient to establish the essential element of habitual gambling. One instance of taking a bet on a baseball game is insufficient to prove habitual operation of a gambling room, and the circumstantial evidence (telephone vigil) is insufficient because the defendants could have had a lawful purpose for monitoring the phone.
“to convict a person of operating a gambling house, the State must prove that 'by the owner's knowledge and consent or direction some game or device condemned as gambling has been habitually played or carried on there.'”
Establishes the legal standard from Creash v. State requiring habitual operation as an essential element of conviction
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Join FLexlaw to unlock all legal intelligenceThe arresting officer testified that an informer dialed the defendants' number and placed a bet with the person who answered. The officer heard this f…
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The appellants were found guilty of maintaining a gambling room in contravention of the law as set forth in § 849.01, Fla.Stat., 1963, F.S.A. On their appeal to this Court, the appellants present two points. The first point urges that the trial court erred in denying appellant’s motion to quash the search warrant upon the ground that the affidavit was insufficient to show probable cause. The second point questions the sufficiency of the evidence to sustain appellants’ convictions. We find that a reversal is necessary under appellants’ second point, even if the evidence seized under the search warrant was validly admitted; therefore, we do not further discuss the first point.
The arresting officer testified that an informer dialed defendants’ number and that he heard the informer place a bet with'the person who answered.. The, officer *499eould not testify that defendants’ number was in fact dialed by the informer because the officer was at an extension phone. One attempted bet on baseball games was taken by a police officer when the search warrant was executed. In addition, it was established that no apparent business was being conducted on the premises, and that the defendants kept a constant watch near the telephone. This evidence is sufficient to raise a strong suspicion that the appellants were probably taking bets over the telephone. In Creash v. State, 131 Fla. 111, 179 So. 149 (1938), the Supreme Court affirmed the conviction of a defendant charged with keeping and operating a gambling house contrary to this section. In discussing the necessary proof for conviction, the court held that to convict a person of operating a gambling house, the State must prove that “by the owner’s knowledge and consent or direction some game or device condemned as gambling has been habitually played or carried on there.” [Emphasis supplied.]
In Millman v. State, Fla.1951, 55 So.2d 713, the Supreme Court reaffirmed the holding of Creash v. State, supra. Thereafter, this Court in Stanger v. State, Fla.App. 1960, 117 So.2d 417, had occasion to apply the same requirement. The State contends that “frequency” is not an essential element. See Knight v. State, 94 Fla. 868, 114 So. 665 (1927). The cases cited do not give a clear statement of when a room may be said to have been “habitually used” for gambling; however, we are certain that one instance of taking a bet on a baseball game is not sufficient. The officer’s testimony as to the number called by the informer is hearsay, and the circumstantial evidence of the vigil maintained by defendants near the telephone is not sufficient because they could have had a legal purpose for tending the phone.
Therefore, the judgments and sentences of these defendants are reversed, and they are discharged from the cause.
Reversed.
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Citator
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Ferguson v. State, 377 So. 2d 709 (Fla. 1979)…terrigo v. State, 151 Fla. 634, 10 So. 2d 361 (1942), where defendants were charged, inter alia, with allowing certain persons to play games of chance at their premises, the Court did not refer to the habitualness element. . Thus in Cohen v. State, 189 So. 2d 498 (Fla. 3d DCA 1966), the district court held that competent proof of only a single instance of taking a bet was insufficient to convict defendant of maintaining a gambling house under section 849.01.…
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Perlman v. State, 269 So. 2d 385 (Fla. 4th DCA 1972)…, were prejudicial since without such dates it would not have been possible for the state to have proven that gambling had been “habitually” played or carried on at the premises owned or controlled by the defendant. See Cohen v. State, Fla.App.1966, 189 So. 2d 498. I therefore would reverse the conviction of the defendant Paskind, as well as the conviction of defendant Perlman.…
Authorities Cited
- Creash v. State, 131 Fla. 111 (Fla. 1938)
- Stanger v. State, 117 So. 2d 417 (Fla. 3d DCA 1960)
- Knight v. State, 94 Fla. 868 (Fla. 1927)