Borrego v. State
| Decision Date | 20 May 1952 |
| Citation | 62 So.2d 43 |
| Parties | BORREGO et al. v. STATE. |
| Court | Florida Supreme Court |
Talton Branch and John D. Goff, Tampa, for appellants.
Richard W. Ervin, Atty. Gen. and William A. O'Bryan, Asst. Atty. Gen., for appellee.
In this case eleven people were convicted on an information charging that they 'did unlawfully and feloniously have in their possession certain tickets in a certain lottery commonly known as bolita and parlay, which said lottery was then and there conducted for money'. A motion for new trial was made and denied as to each defendant and each was adjudged guilty and sentence pronounced. All of the defendants appealed.
The prosecuting witness testified that he, with other officers, in possession of a search warrant, went to the house in question; that he went to the back door and knocked on the porch; somebody 'hollered,' 'Come in'; there was a man outside of the house, who later came into the house. As the officer went into the house, he came first to the kitchen, then went through the first door where he saw a dining room, with a big round dining table with some men sitting around and picking up some tickets and money. He told the men he had a search warrant for Rosa Borrego. At the time there were ten people in the house, including Rosa Borrego, and one on the outside. Rosa Borrego was in a bedroom and was sweeping
After the search warrant was read, the officers counted the money on the table, seized some copies of bolita tickets and then arrested all eleven of the parties, including Rosa Borrego, and the unidentified man who was on the outside when the officers arrived but who later came into the house.
There was not one scintilla of evidence to the effect that Rosa Borrego was in possession of any tickets of any kind whatsoever. The only testimony of her activities was that she was in possession of a broom and was sweeping behind a bed. She may have been in bad company like 'old Dog Tray', but according to this record, she was not in possession of any lottery tickets. The motion for directed verdict as to her should have been granted.
There is not one word of testimony in the record to identify the man who was on the outside when the officers arrived. There is no testimony that he was ever in possession of any lottery tickets. All eleven persons were convicted, which necessarily included the unidentified person who was on the outside. There was no evidence to sustain a conviction as to him. If the nine persons who were around the table had been sufficiently identified, perhpas the evidence in the record would have been sufficient to sustain a conviction as to them. But inasmuch as the verdict of guilty covers an unidentified person when there is no evidence in the record to sustain a conviction as to such unidentified person, the case must be reversed for a new trial, because of the insufficiency of proof as to identity.
Reversed with directions to dismiss as to Rosa Borrego and grant a new trial as to all other defendants.
On Petition for Clarification.
In our opinion filed on May 20, 1952, this cause was reversed for a new trial on the grounds therein stated.
The validity of the search warrant and the evidence secured by the execution of such warrant was presented in the assignments of error, in the briefs and orally argued before the Court. We did not pass upon these questions for the reasons stated in our original opinion.
The State has filed an application for clarification or modification of our original opinion. It has called our attention to the fact that in a re-trial of the cause the same questions as to the legality of a search warrant and of the evidence secured in the execution thereof would again be presented and that if there is any merit in the contention of the appellants with reference to these questions, a re-trial would be useless, futile and expensive.
Proper objections were made to the search warrant and were overruled, and motions to suppress the evidence obtained in the execution of such warrant were denied.
The affidavit for the search warrant after stating that the affiant believed that a certain dwelling house was being used as a gambling house and that there was kept therein certain gambling paraphernalia, stated:
'That the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows: That affiant, for the past two weeks, in the course of an investigation conducted by him as Deputy Sheriff, has seen a number of persons, both white and colored, known to be bolita peddlers, entering and leaving the house located on said premises, and has learned from the aforesaid investigation that there are within the house aforesaid gambling implements, lottery implements, lottery tickets, lottery tally sheets and records containing the lottery numbers or rights in said building in a lottery for money not yet played and that affiant has information from other persons that unlawful gambling and a lottery is actually being operated within said building'. (Italics supplied.)
The affidavit in the case at bar is almost identical with that in the case of White v. State, Fla., 47 So.2d 863, 864. In that case in an opinion by Mr. Justice Chapman, we said:
'The affidavit fails to state facts or sufficient reasons upon which the officer believed, or had reason to believe, that the laws were being violated by the appellant.'
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