CLYDE ALBERT ROWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clyde Albert Rowe appeals his conviction for violating Florida's lottery laws. The Florida Supreme Court reversed the conviction on count one (possession of a federal gambling stamp) as unconstitutional but affirmed the conviction on count three (conducting a lottery).
Count one did not charge a valid criminal offense and the conviction on that count was erroneously entered and must be set aside. The judgment and sentence on count three was affirmed.
“attempt to make the mere possession of the [federal gambling] stamp primá facie evidence of the violation of the gambling laws and sufficient evidence to convict without any proof whatsoever that any gambling law has been violated, [the act] is unconstitutional, null and void.”
The Court's holding regarding why the Florida Wagering Stamp Act was unconstitutional, citing Jefferson v. Sweat.
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Join FLexlaw to unlock all legal intelligenceRowe was charged with four counts of violating Florida's lottery laws. The first and second counts alleged he unlawfully possessed a federal gambling …
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SEBRING, Justice.
The appeal is from a judgment and sentence for a violation of the lottery laws.
The appellant, who was the defendant below, was charged in a four-count information with violating the lottery laws of the state. The first and second counts charged, in effect, that the appellant was unlawfully interested in and connected with a lottery by reason of the fact that he had purchased, and held in his possession, a gambling stamp from the federal government. The third count charged that the appellant “did unlawfully set up, promote and conduct a certain lottery and lotteries for money.” The fourth count charged that the appellant “did unlawfully aid and assist in the setting up, promoting and conducting of a certain lottery and lotteries for money.”
At the trial of the cause the jury found the defendant guilty on the first and third counts of the information. The trial court adjudged the defendant to be guilty on both counts but sentenced him only on the third count, to one year at hard labor. On this appeal the appellant contends that count one of the information did not charge a criminal offense; and with this contention we agree. Aside from the fact that the act charged in count one of the information was committed prior to the effective date of the Florida Wagering Stamp Act, Chapter 28057, Laws of Florida 1953, F.S.A. § 849.051, and therefore could not have been in violation of its terms, Rodriguez v. Culbreath, Fla., 66 So. 2d 58, it is held, in Jefferson v. Sweat, Fla., 76 So. 2d 494, with reference to the act, that inasmuch as sections 1 and 3 thereof, when construed together, “attempt to make the mere possession of the [federal gambling] stamp primá facie evidence of the violation of the gambling laws and sufficient evidence to convict without any proof whatsoever that any gambling. law has been violated, [the act] is unconstitutional, null and void.” It follows from this that the judgment, so far as it is based on the first count of the information, was erroneously entered and must be set aside.
We have considered all assignments of error directed to the judgment and sentence on the third count of the information and are of the opinion that the appellant has failed to make reversible error appear. Accordingly, the judgment appealed from should be reversed as to the first count of the information and the judgment and sentence as to the third count should be affirmed.
It is so ordered.
DREW, C. J., TERRELL, J., and FLOYD, Associate Justice, concur.
We, therefore, reverse and remand this' cause for a new trial on the third count of the Information only.
DREW, C. J., and TERRELL, THOMAS and HOBSON, JJ., concur. SEBRING and THORNAL, JJ., adhere to original opinion.
THORNAL, Justice
(adhering to original opinion).
I adhere to original opinion of SE-BRING, J. “Wagering” could be bolita or bookmaking but it must be one or the other. I think this was sufficient proof of. corpus delicti to admit confession.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Sciortino v. State, 115 So. 2d 93 (Fla. 2d DCA 1959)…e charged had been committed. See 20 Am.Juris. pg. 422, Sec. 484, and cases there cited. The record fails to establish this fact and, therefore, we find no legal evidence in the record supporting conviction.” In the case of Rowe v. State, Fla.1955, 84 So. 2d 709, the Florida Supreme Court, on rehearing, reversed the conviction of the appellant on the third count of an information which charged that the appellant “did unlawfully set up, promote and conduct a certain lottery and lotteries for money.” The Sta…1 / 2
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Sagonias v. State, 89 So. 2d 252 (Fla. 1956)…which would make such connection a felony under F.S. § 849.09, F. S.A. It is fundamental that the venue of the crime charged must not only be alleged in the indictment or information, but the proof must sustain such allegation. Rowe v. State, Fla., 84 So. 2d 709, opinion on rehearing granted filed January 18, 1956; Rimes v. State, 101 Fla. 1322, 133 So. 550; McKinnie v. State, 44 Fla. 143, 32 So. 786. The proof of a felony in this case falls short of this requirement. DREW, C. J., and ROBERTS and THORNAL,…
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Hodges v. State, 176 So. 2d 91 (Fla. 1965)…y be considered along with independent evidence in establishing the prima facie corpus delicti necessary to justify admission of a confession into evidence conflicts, on essentially similar facts, with the following cases: Rowe v. State, Fla. (1955) 84 So. 2d 709; Adams v. State (1943) 153 Fla. 68, 13 So. 2d 610; Keir v. State (1943) 152 Fla. 389, 11 So. 2d 886; Deiterle v. State (1931) 101 Fla. 79, 134 So. 42; Sciortino v. State, Fla. App., 2nd Dist. (1959) 115 So. 2d 93 and Alexander v. State, Fla.App., 2n…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nickels v. State, 106 So. 479 (Fla. 1925)
- Jefferson ex rel. v. Sweat, 76 So. 2d 494 (Fla. 1954)
- Rodriguez v. Culbreath, 66 So. 2d 58 (Fla. 1953)