Diecidue v. State, 941
Decision Date | 01 April 1960 |
Docket Number | No. 941,941 |
Citation | 119 So.2d 803 |
Parties | Frank A. DIECIDUE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Frank Ragano of Hawes & Ragano, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for appellee.
The appellant-defendant has appealed from judgment and sentence entered against him for violation of the lottery laws of the State of Florida. The State has filed cross-assignment of error pointing to a certain instruction of the trial court.
The information upon which the defendant was tried was in three counts, the first of which charged that the defendant did unlawfully set up, promote or conduct a lottery for money, commonly known as 'Bolita' or 'Cuba'; the second count charged that he did unlawfully aid and assist in the setting up, promoting or conducting of a lottery for money, commonly known as 'Bolita' or 'Cuba'; and the third count charged that he did unlawfully conspire, agree, combine and confederate to unlawfully conduct a lottery for money, said lottery being commonly known as 'Bolita' or 'Cuba'. Shortly after the information was filed, the county solicitor filed a bill of particulars, as requested by defendants. The information was against this defendant and six other codefendants. At the trial a motion for a directed verdict was denied and the defendant here was convicted on counts one and two. A motion for new trial was denied, and he was sentenced on the first count. Sentence was withheld as to the second count, pending clarification of a case then on appeal. The jury was unable to reach a verdict as to the other six defendants, and a mistrial was declared.
This appeal is based on three points; namely, (1) whether the trial court committed error in denying defendant's motion for directed verdict, (2) whether the trial court committed error in instructing the jury as to the law relative to 'possession', and (3) whether the trial court committed error in admitting certain testimony of one of the state's witnesses. The state on cross-assignment challenges the correctness of the trial court's instruction to the jury on the necessity of the state to prove that the lottery involved was a 'live lottery.'
Prior to the information being filed, law enforcement officers had maintained surveillance of various of the defendants and places that they frequented. On March 22, 1958 they entered the home of the defendant, seized sundry items of lottery paraphernalia and arrested some of the defendants. At the time of the raid the appellant was not present, nor did the state prove that he ever handled any of the particular lottery paraphernalia which was seized. His conviction was on circumstantial evidence and no testimony was offered by the defendant. The question is whether or not the evidence submitted by the state was legally sufficient to support the charge.
As was said in Victor v. State, 1939, 141 Fla. 508, 193 So. 762, 763:
The defendant cites the case of Harrison v. State, Fla.App.1958, 104 So.2d 391, where a conviction on circumstantial evidence was reversed. However, the majority of that court explained its ruling by saying, at page 395:
The rule is quite plain as to when a verdict should be directed, but it is in applying the rule to a given set of facts that difficulty is encountered. The trial of this case lasted several days, and though the defendant was not present at his house when the raid was made, there is circumstantial evidence from which the jury could have concluded, as it did in the verdict, that the defendant was implicated. Further, the state may be aided by a presumption in meeting its burden of proof, as pointed out in 54 C.J.S. Lotteries § 26, p. 872:
* * *.'
After studying the transcript of the testimony, we will have to hold that the trial court did not err in denying the motion for directed verdict. The case was correctly submitted to the jury.
In his second point the defendant complains of the court's instruction on 'possession'. The jury had the case for some time when it returned into open court and requested that the court repeat the instruction on possession. The court did so, saying:
(Emphasis supplied.)
This instruction was given to the jury in the original charges without objection by this appellant. At the second reading, however, the appellant objected to the italicized portion, saying that, by so instructing, the trial court improperly established the material fact of possession and improperly called the jury's attention to the fact that the appellant had not testified in his own behalf.
Viewing an instruction in isolation is a far different matter than viewing it in context with all other instructions, as the jury does. The test is whether the law is fairly presented to the jury, and it is well established that a challenged instruction must be considered in connection with all other instructions bearing on the same subject. Driver v. State, Fla.1950, 46 So.2d 718; Higginbotham v. State, 1944, 155 Fla. 274, 19 So.2d 829; Barkley v. State, 1942, 152 Fla. 147, 10 So.2d 922; Smith v. State, 1942, 149 Fla. 511, 6 So.2d 383.
When considered with the other instructions, we cannot...
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Diecidue v. State, 30913
...This case is before us on petition for certiorari directed to an opinion of the District Court of Appeal, Second District, Diecidue v. State, Fla.App., 119 So.2d 803, upon the theory of a conflict between the decision of that court and prior decisions of the Supreme Court of The case agains......
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Walker v. State
...the court." Marion County Hospital District v. Akins, 435 So.2d 272, 273 (Fla. 1st DCA 1983). We do not, as urged, read Diecidue v. State, 119 So.2d 803 (Fla.2d DCA 1960), to stand for a contrary proposition, but to the extent that it does, we decline to follow The final judgment of convict......
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McGough v. State, s. 72--861
...adduced by the defendant to the effect that it 'belonged' to Timmons. There was surely no harmful error here. See also Diecidue v. State, Fla.App.1960, 119 So.2d 803. ...