Chacon v. State

• Decision Date: 19 June 1957
• Citation: 102 So.2d 578
• Parties: Edelmira CHACON, Henry Longval and Pressley McFadden, Appellants, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 578

102 So.2d 578

Edelmira CHACON, Henry Longval and Pressley McFadden, Appellants, v. STATE of Florida, Appellee.

Supreme Court of Florida, Special Division A.

June 19, 1957.

On Rehearing April 16, 1958.

William T. Fussell, John A. R. Grimaldi, and Frank Regano, Tampa, for appellants.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.

WELCH, Associate Justice.

There is little dispute, if any, between the parties as to the facts shown by the record in this case, which are substantially as follows:

An information was filed on the 19th day of November, 1954, in Four Counts, charging appellants with violating the State Lottery Statutes, F.S.A. § 849.01 et seq. The First Count charged that they did unlawfully aid and assist in the setting up, promoting or conducting of a lottery for money; the Second Count charged that they did unlawfully have in their possession certain tickets in a lottery for money; the Third Count charged that they did unlawfully have in their possession certain implements and devices for conducting a lottery; the Fourth Count charged that they did unlawfully sell or offer for sale shares and interests in a lottery for money.

Thereafter, on the 4th day of February, 1955, the appellant, Edelmira Chacon, filed a Pre-Trial sworn Motion to Quash a Search Warrant, suppress evidence obtained thereunder and return of property illegally taken (R. 105); on February 4, 1955, the appellant, Henry Longval, filed a Pre-Trial sworn Motion to Suppress Evidence obtained under illegal arrest and return of property illegally taken (R. 11-13) and Motion for Severance (R. 14-15), and these Motions were denied (R. 105-106); and on February 4, 1955, the appellant, Pressley McFadden, filed a Pre-Trial sworn Motion to Suppress Evidence obtained under illegal arrest and return of property illegally taken (R. 16-18) and Motion for Severance (R. 19-20) and these Motions were denied (R. 106). On February 10, 1955, in advance of trial, the aforesaid Motions were heard and the Arresting Officers testified at length and the Judge presiding at the hearing denied said Motions, as aforesaid (R. 105-106).

Thereafter, on March 3, 1955, the appellants, having entered a plea of not guilty, the case came on for trial before a Jury and the presiding Judge (R. 107); during the progress of said trial the evidence which had been seized by the Arresting Officers, and which appellants had filed Motions to Suppress, was offered in evidence, to the introduction of which appellants duly objected, but all of said objections weee over-ruled by the Trial Judge, and all of said exhibits were admitted in evidence over said objections by the Trial Judge, as follows:

'Yes. Now all of the evidence is admissible, all of the exhibits are admissible against all defendants under Counts 1 and 3. Exhibit 8 is inadmissible against McFadden, is against Longval. I had better put it this way: That the only Bolita Ticket Exhibits which are admissible against Longval are those embraced in Exhibit 8, if any; and the only ones admissible against McFadden under the Second Count are those if any, embraced in Exhibit 9. Now, the Fourth Count, the same thing will be true as to Exhibits 8 and 9, respectively, on Longval and McFadden. Everything is admissible against Chacon on every count.' (R. 266)

Thereafter, at the conclusion of the testimony on behalf of the State, all of the defendants duly moved the Court for a directed verdict of not guilty as to all the defendants on all counts, which Motion the Court denied (R. 267); thereafter, on March 3, 1955, the Jury returned with verdicts finding the Defendant, Edelmira Chacon, guilty as charged in the Information; the defendants, Henry Longval and Pressley McFadden, guilty as charged in the First, Third and Fourth Counts of the of the Information; the Court, on oral Motion of appellants did, on March 3, 1955, enter an Order extending the time for filing Motion for New Trial (R. 286); thereafter, the appellants, on March 11, 1955, and within the time fixed by said Special Order, did file their separate Motion for a new trial (R. 290-291); thereafter, the Court did on March 28, 1955, enter an Order over-ruling and denying all the said Motions for New Trial (R. 293); thereafter, the Court did impose Final Judgment and Sentence.

On April 11, 1955, the appellants filed their Notice of Appeal to the Supreme Court (R. 296) and on April 17, 1956, within the time fixed by Special Order, the defendants filed their separate Assignments of Error and grounds for Appeal (R. 297-305), and on April 17, 1956, the defendants filed their written directions to the Clerk (R. 306-307), thereby perfecting their Appeal to this Court.

At a hearing on the Motion to Suppress and Motion to Severance held on February 10, 1955, before the presiding Judge of the lower Court, the witnesses, Clinton Burgess, Ellis Clifton and Malcolm Beard, all Deputy Sheriffs of Hillsborough County, Florida, testified that on November 13, 1955, the said Officers, armed with a Search Warrant (R. 287) entered that certain dwelling house located at 948 11th Avenue, Tampa, Hillsborough County, Florida, and searched the said dwelling house for lottery law violation. That while searching the said dwelling house the witness, Clinton Burgess, testified that he found an Adding Machine, introduced in evidence as State's Exhibit No. 3 (R. 118) in the bedroom of Edelmira Chacon; assorted papers, introduced in evidence as State's Exhibit No. 4 (R. 120), on the bed of the defendant, Edelmira Chacon; yellow and pink pads, introduced in evidence as State's Exhibit No. 5 (R. 121) in the bedroom of Edelmira Chacon; Adding Machine paper rolls introduced in evidence as State's Exhibit No. 6 (R. 122), and two slips of yellow paper introduced in evidence as State's Exhibit No. 10 (R. 110) in the bedroom of Edelmira Chacon. The witness, Ellis Clifton, testified that while the search was in progress the Telephone in the dwelling house rang and various unknown persons called in lottery bets and that a person unknown to him and identified only as 'Joe' called and said on one occasion that 'Henry was coming over' and that on another incoming call, he recognized the same voice that told him that 'he' (caller) 'was sending a new boy by to pick up the stuff.' That after these Telephone conversations, a White man walked up to the house and was invited in by Ellis Clifton and while Ellis Clifton was talking to him at the front door, Malcolm Beard, who had not heard the conversation between Ellis Clifton and the White man, came up and arrested the White man who had just come to the door. This White man was identified as being Henry Longval. All three of the Officers testified that they had never seen or heard of Henry Longval prior to his walking up to the house. After the arrest of Henry Longval, a Colored man walked up to the front porch of the dwelling house, while the search was still in progress, and he was invited into the house by Ellis Clifton. The aforesaid Colored man was identified as the defendant, Pressley McFadden. Immediately after Pressley McFadden was invited into the house, he was engaged in a very short conversation with Ellis Clifton. Malcolm Beard, who had not overheard the conversation, but had been standing in the hallway watching Pressley MeFadden walk up the front walk, into the house and speak to Ellis Clifton, arrested the said Pressley McFadden and took him into the kitchen where he was searched and alleged Bolita Tickets found on him, were introduced in evidence as State's Exhibit No. 9.

Appellants pose many questions on this Appeal. Question number One, is as follows:

'Do the following allegations of the Affidavit for Search Warrant meet and comply with the necessary legal requirements of probable cause for the issuance of a valid Search Warrant for a dwelling house?

'That the Affiant, on October 30, 1954, in the dwelling of Ross Anderson, Deputy Sheriff of Hillsborough County, Florida, personally observed a confidential informant dial a certain Telephone number, to wit: 25-4251, said Telephone number being the same number listed in the August, 1954, issue of the Telephone Directory for Tampa, Florida, under the name of Ursina Gonzalez, of 948 11th Avenue, Tampa, and thereupon, while listening on an extension of said Telephone, Affiant heard said confidential informant talk to a woman and purchase from said woman over the Telephone an interest in a lottery, commonly known as Bolita or Cuba, and that Affiant believes and has reason to believe that unlawful gambling and a lottery for money are actually being operated within said building.'

This Court held in Cooper v. State, 106 Fla. 254, 143 So. 217, that an Affidavit for a liquor Search Warrant not stating facts on which Affiant's belief was based, and where Affidavit recited, in substance, that belief of Affiant was based on information furnished Affiant by parties who had knowledge of sale and possession of liquor and whom Affiant believed to be truthful and reliable, but there was no statement of any fact on which Affiant's belief was based and nothing on which Affiant could be held accountable for false swearing or perjury was insufficient. Also that persons making Affidavit for liquor Search Warrant must set forth facts on which belief is based, so that Affiant may be held responsible for falsity therefof and where Affidavit constituting basis for liquor Search Warrant was insufficient, evidence procured thereunder was inadmissible. In the body of the opinion in that case, 143 So. at page 217, this Court took occasion to say that Section 22 of the Declaration of Rights was not placed in the organic law of this State as an idle gesture; and at page 218 of 143 So., said, in reference to the Affidavit upon which the Search Warrant in that case issued,

'The affidavit upon which the search warrant issued in this case does not meet the requirements of the statute....