Brown v. State
| Decision Date | 01 March 1966 |
| Docket Number | Nos. 65--276,65--309,s. 65--276 |
| Citation | 184 So.2d 691 |
| Parties | Mathis BROWN and Samuel Stewart, Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Irwin S. Gars, Miami, and Robert Dixon, Miami, Fla., for appellants.
Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellee.
Before HENDRY, C.J., and TILLMAN PEARSON and BARKDULL, JJ.
This is an appeal by the defendants from a judgment and sentence following a nonjury trial and conviction on two counts of an information for gambling law violations. Both defendants were sentenced to six months in the County Jail for possession of lottery tickets, a misdemeanor, in violation of § 849.09(1) (h), Fla.Stat., F.S.A., and to one year in the County Jail for unlawfully aiding or assisting in the conducting of a lottery, a felony, in violation of § 849.09(1)(d), Fla.Stat., F.S.A., the sentences to run concurrently.
A detective of the Dade County Sheriff's Department accompanied by two members of the State Attorney's office arrived at a gas station located at 14585 N.W. 22nd Avenue, Miami, Florida, armed with a search warrant. When entering the office of the gas station, defendant-Brown was found sitting at a desk writing an alleged bolita ticket. At this time, defendant-Stewart was outside the office. Stewart, who was the owner and operator of the station, was ordered inside. A search of the premises revealed the following items. On top of the desk, in front of Brown, lay a cigar box with $3.73 in it and a narrow pad and ballpoint pen next to it. In an open drawer to the left of Brown was found another cigar box containing $112.05 and numerous slips of paper. Also in the drawer were two brown manila envelopes containing $68.80 and $345, respectively. An envelope containing memo pads was found on a shelf behind the desk, and under the blotter on the desk were some loose slips of paper. Two of the officers, testifying as experts, stated that the material found is used in writing lottery tickets, in checking up on lotteries and in keeping records of winning lottery numbers.
The defendants present the following points on this appeal:
(1) Whether the trial court erred in denying a motion to suppress the evidence seized in an alleged illegal search and seizure;
(2) that the convictions are not sustained by substantial evidence;
(3) whether the sentences were properly imposed.
As to the first point, the defendants contend that the search warrant was not legally sufficient because it failed to name or describe the person or persons alleged to have been violating the laws of this state. Section 933.04, Fla.Stat., F.S.A. provides that 'no search warrant shall be issued except upon probable cause, * * * particularly describing the place to be searched and the person and thing to be seized.' The affiant disclosed in the affidavit in support of the search warrant that the premises in question were being used in violation of the lottery laws by a colored male, whose name was unknown. At trial, it affirmatively appeared that the affiant did not know the name of the owner of the premises at the time he prepared the affidavit, nor the name of the persons alleged to be violating the gambling laws. The prevailing view in this state is that if the name of the person is known it shall be given, but if not known, the name or description is not required. 1 Therefore, the search warrant was executed properly and the trial court was correct in denying the defendants' motion to suppress the evidence.
As to the second point, the defendants argue that the possession of lottery paraphernalia, without more, is insufficient to support a conviction for aiding or assisting in the conducting of a lottery. The defendants rely on the decision in Holliday v. State, Fla.App.1958, 104 So.2d 137, 143, wherein Chief Judge Sturgis, speaking for the First District said:
'* * * Thus, the bare circumstance of being found in possession of paraphernalia commonly used in promoting or conducting a lottery, though admissible in evidence for whatever value it may have in support of the inference that the party found in possession was, within the statutory period embraced by the information or indictment, interested in a live lottery, that circumstance standing alone is...
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