La Barbara v. State
| Decision Date | 29 May 1942 |
| Parties | LA BARBARA v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied July 6, 1942.
Appeal from Criminal Court of Record, Hillsborough County; John R. Himes, Judge.
Cyrus W Fields, of Tampa, for appellant.
J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Sp. Asst. Atty Gen., for appellee.
The appellant, Tony La Barbara, was informed against by the County Solicitor of Hillsborough County, Florida, for the violation of Section 7667 C.G.L. The crime was alleged to have been committed in Hillsborough County, Florida, on January 6, 1942. The appellant was arraigned and tendered a plea of not guilty was placed upon trial and convicted, and a motion for a new trial made and denied and the appellant was sentenced to pay a fine of $500 and costs, or to serve six months in the county jail of Hillsborough County. An appeal has been perfected from said judgment of conviction to this Court.
Counsel for appellant contend that the information, while containing but a single count, charges three separate and distinct felonies (1) Conducting a lottery for money; (2) by lottery disposed of money; and (3) did sell shares or rights in a lottery drawing. An examination of the record discloses that the appellant on arraignment filed a plea of not guilty. If the information was faulty, it was the duty of the appellant to have challenged the sufficiency of the information by motion to quash prior to pleading to the merits. The attack on the information for the first time in this Court fails to disclose due diligence and is tantamount to a waiver, and these several contentions are proscribed by Section 142 of the Criminal Code, Chapter 19554, Acts of 1939, Laws of Florida.
It is next contended that the evidence was legally insufficient to sustain the material allegations of the information, and the verdict and judgment entered in the Criminal Court of Record of Hillsborough County. The record discloses that two students were employed by the Police Department to purchase Bolia Tickets, and on the 5th of January, 1942, at the corner of Tampa and Fortune Streets, that each bought numbers 'across the board'. On the the following day they returned to the same place of business and the appellant paid to each of them $20, as each had purchased the paying numbers. It is true that the defendant below on the witness stand denied having seen the State witnesses or that they entered the place of business where he worked and denied that he had had business transactions with the two State witnesses. We think these disputes and conflicts in the testimony were for the jury under appropriate instructions. In the case of Perry v. State, 146 Fla. 187, 200 So. 525, 527, this Court said:
It is next contended that the State witnesses are spotters, stool pigeons and accomplices and for these reasons it was the duty of the trial court to charge the jury in accordance with the utterances of this Court in the case of Harrison v. State, Fla., 5 So.2d 703. We are unable to agree to this conclusion as presented by counsel for appellant.
It is next contended that the instructions of the court to the jury upon the law of the case were not only vague, indefinite and insufficient, but failed to conform with the several provisions and the previous ruling of this court in Harrison v. State, supra, of Section 215 of the Criminal Code, supra, in that the charges as given did not cover 'the law of the case.'
The following is the entire record of the proceedings from the time counsel completed their arguments until the jury retired:
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