Bueno v. State

• Decision Date: 11 May 1898
• Parties: BUENO v. STATE.
• Court: Florida Supreme Court

23 So. 862

40 Fla. 160

BUENO v. STATE.

Florida Supreme Court

May 11, 1898

Error to criminal court of record, Hillsborough county; Livingston W. Bethel, Judge.

Leon Bueno was convicted of conducting a lottery, and brings error. Reversed, and cause remanded for proper sentence.

Syllabus by the Court

SYLLABUS

1. A conviction in the municipal court of a city, based upon a city ordinance creating an offense against the city, is no bar to a state prosecution for the same acts, which, under a state statute, constitute an offense against the state.

2. Where an information charges only one offense, but in its several counts charges that offense to have been committed in different ways or by different methods, and there is a general verdict of guilty, followed by a general sentence within the limits prescribed for the offense, any error in refusing to quash particular bad counts in the information is harmless, where the information contains good counts, which are fully sustained by the evidence.

3. A count charging that defendant, in Monroe county, on August 21, 1897, 'unlawfully and reloniously did set up and promote a certain lottery, which said lottery was then and there for money, and which said lottery is commonly known as 'bolito,' a more particular description of which said lottery is to the solicitor aforesaid unknown,' and another in the same language except the words 'and promote' are omitted, are good, under section 1, c. 4373 Acts 1895.

4. Counts in an information framed under section 1, c. 4373 Acts 1895, charging that defendant in a specified county, at a specified time, 'unlawfully and feloniously did sell to one Jeremiah Cleare a certain lottery ticket,' and 'unlawfully and feloniously did sell to Jeremiah Cleare a fractional part of a lottery ticket,' and 'unlawfully and feloniously did sell to Jeremiah Cleare a share in a lottery ticket,' are sufficient, without designating the particular lottery ticket, or specifying the fractional part or share in the lottery ticket alleged to have been sold.

5. Instructions that are not applicable to any evidence in the case are properly refused.

6. Slips of paper stamped by the seller, and sold at five cents each, to purchasers, who number them with certain numbers selected by such purchaser from a blackboard in possession of the seller, which slips of paper are, at a subsequent lottery drawing conducted by the seller, if the numbers thereon correspond with others drawn, redeemed by the seller's paying to the purchaser $4.50, are lottery tickets, even though such slips of paper do not purport to entitle the holder to the chance of a prize to be distributed by lot, and even though the seller makes no contract or agreement with or representation to, the purchaser to that effect.

7. Under chapter 4026, Acts 1890-91, where the primary punishment imposed by the court consists of a fine, or a fine and costs of prosecution, and in addition a term of imprisonment in the state prison, an additional period of imprisonment in the state prison for nonpayment of the fine or of the fine and costs, may be imposed; but in all other cases the imprisonment for nonpayment of a fine, or fine and costs, must be by confinement in a county jail.

COUNSEL Jefferson B. Browne and Geo. P. Raney, for plaintiff in error.

William B. Lamar, Atty, Gen., for the State.

OPINION

CARTER J.

On September 13, 1897, the county solicitor filed in the criminal court of record of Monroe county an information against plaintiff in error, containing 16 counts. Each count charged that the offense was committed by defendant, in Monroe county; the time laid in the first, second third, fourth, fifth, sixth, seventh, eighth, and sixteenth being August 21, 1897, and in the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth, September 1, 1897. The charging part of the several counts, omitting formal commencements and conclusions, was as follows: First. 'Unlawfully and feloniously did set up and promote a certain lottery, which said lottery was then and there for money, a more particular description of which said lottery is to the solicitor aforesaid unknown.' Ninth. Same language, except the words 'and promote' omitted. Second. 'Unlawfully and feloniously did set up and promote a certain lottery, which said lottery was then and there for money, and which said lottery is commonly known as 'bolito,' a more particular description of which said lottery is to the solicitor aforesaid unknown.' Tenth. Same language, except the words 'and promote' omitted. Third. 'Unlawfully and feloniously did conduct a lottery drawing for the distribution of prizes by chance, a more particular description of which said lottery drawing is to the solicitor aforesaid unknown.' Fourth and twelfth. 'Unlawfully and feloniously did, by means of a certain lottery, dispose of money, a more particular description of which said lottery is to the solicitor aforesaid unknown.' Fifth and thirteenth. 'Unlawfully and feloniously did sell to one Jeremiah Cleare a certain lottery ticket.' Sixth and fourteenth. 'Unlawfully and feloniously did sell to Jeremiah Cleare a fractional part of a lottery ticket.' Seventh and fifteenth. 'Unlawfully and feloniously did sell to Jeremiah Cleare a share in a lottery ticket.' Eighth. 'Unlawfully and feloniously did aid in the sale of lottery tickets to persons to the solicitor aforesaid as yet unknown.' Eleventh. 'Unlawfully and feloniously was connected with a certain lottery, a more particular description of which said lottery is to the solicitor aforesaid unknown.' Sixteenth. 'Unlawfully and feloniously did sell lottery tickets to persons to the solicitor aforesaid unknown, and a more particular description of which said lottery tickets is to the solicitor aforesaid unknown.'

Defendant filed his plea to this information, alleging that on September 3, 1897, he was tried and convicted in the police justice's court of the city of Key West, upon a charge 'that Leon Bueno did, within the said city, on the 1st day of September, 1897, violate Ordinance No. 39, § 1, by setting up and promoting an establishment for the purpose of playing a game for money, the result of which game is dependent upon lot, number, and chance, contrary to the form of the ordinance in such case made and provided, and against the peace and dignity of the city of Key West,' and sentenced to pay a fine of $100, and, in default of such payment, that he be committed to the city prison for 60 days, which judgment and sentence still remained in force; that defendant was the identical person so tried and convicted; and that the offense of which he was convicted was the same as the one charged against him by this information. The court sustained a demurrer to this plea, which ruling is assigned as error. Defendant then filed a demurrer to the several counts in the information, assigning as grounds: '(1) They do not set out the facts which constitute the offense charged; (2) that none of the sixteen counts in said information sufficiently set forth the essential facts upon which the several counts are based.' The court overruled this demurrer, and this ruling is assigned as error. At defendant's request, the court instructed the jury that, 'to sustain a conviction for selling lottery tickets, there must be proof to show that the paper represented a share in a game of chance. A lottery is a gaming contract, by which, for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he risks;' and refused to instruct, at defendant's request, as follows: '(2) Evidence that the defendant sold a slip of paper bearing certain numbers on one side and a dating stamp on the other, without any contract or agreement or statement that the paper entitled the holder to the chance of a prize, to be distributed by lot, is not sufficient to sustain a verdict of guilty. First. All gambling is not a lottery. Second. The state of Florida prohibits several species of gambling, and proof of gambling simply will not support a conviction for setting up a lottery or selling a lottery ticket. Third. Setting up a lottery is a species of gambling, but proof of gambling which does not establish a lottery is not sufficient to secure a conviction upon this indictment.' The refusal to give these instructions is assigned as error.

The jury found the defendant 'guilty as charged in the information.' Defendant's motion for a new trial was overruled, and the court pronounced sentence as follows 'The sentence of the law is that you, Leon Bueno, pay a fine of one thousand dollars and the costs of this prosecution, in default thereof to be imprisoned by confinement in the state prison at hard labor for a term of one year.' The latter or default feature of this sentence is assigned as error. No...