Cooper v. City of Miami
| Decision Date | 02 July 1948 |
| Citation | 36 So.2d 195,160 Fla. 656 |
| Parties | COOPER v. CITY OF MIAMI. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Stanley Milledge, judge.
Roberts Holland & Strickland, of Miami, for petitioner.
J. W Watson, Jr., and John E. Cicero, both of Miami, for respondent.
The petitioner has filed a petition to obtain a review by certiorari of an order entered by the Circuit Court of Dade County affirming a judgment of conviction in the Municipal Court of the City of Miami. The record shows that the petitioner was adjudged guilty in said municipal court upon a charge that he 'did then and there unlawfully set up and keep a gambling device at which a game of chance, to-wit: betting on horse races was then and there played for money * * * in violation of Section 2 of Chapter 21 of the Code of said City.'
The evidence upon which the conviction was based was given by the arresting officer who stated that on several occasions, at a certain bar in Miami he had observed the petitioner 'taking bets and also paying off on winners' on certain horse races being run; that on the occasion of the arrest he saw the petitioner receive money for a bet and hand the better a bet slip upon which was written the amount of the bet that had been made, the initials of the petitioner and the horse upon which the bet had been placed. This was all the evidence offered by the prosecution and on this the petitioner was adjudged guilty of the charge preferred against him, after denials by the trial court of motions for directed verdict and new trial on the ground that the evidence did not sustain the charge and was at variance with the charge.
The gist of the charge upon which the petitioner was tried was the setting up and keeping of a gambling device at which a game of chance was played for money. By the weight of authority, the term 'gambling device', as the term is generally employed in penal statutes or ordinances, means the tangible means, instrument, contrivance, or thing at or by which money may be lost or won, as distinguished from the game itself, and includes only such instruments or contrivances as are intended for the purpose of gaming, or such as are used to determine the result of the contest on which the wager is laid. See 24 Am. Jur. pp. 420, 424, Gaming and Prize Contests, Sections 31, 36. Such is the obvious meaning of 'gambling device' as the term is used in our own statutes and decisions. See Sections 849.01, 849.05, 849.14-849.16, 901.19, Fla.Stat.1941, F.S.A.; Kirk v. Morrison, 108 Fla. 144, 146 So. 215; Pasternack v. Bennett, 138 Fla. 663, 190 So. 56. The manifest purpose and intent of a statute or ordinance forbiding the setting up and keeping of a gambling device at which games of chance are played for money is to prohibit not the gaming or gambling itself but the maintenance and operation of a device upon or by means of which gaming or gambling is permitted. See McBride v. State, 39 Fla. 442, 22 So. 711; Reinmiller v. State, 93 Fla. 462, 111 So. 633; Wilson v. State, 129 Fla. 827, 177 So. 216.
It is plain from the evidence that the prosecution did not prove the charge lodged against the petitioner but proved, at most, an entirely different offense punishable by an entirely different ordinance, namely, gaming or...
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