Diecidue v. State, 941

Decision Date01 April 1960
Docket NumberNo. 941,941
Citation119 So.2d 803
PartiesFrank A. DIECIDUE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida 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.

SHANNON, Judge.

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:

'While it is true that most of the evidence adduced was circumstantial, this court has repeatedly held that when such evidence is of a conclusive nature and tendency, and is consistent with guilt and inconsistent with innocence, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged, such evidence will sustain a conviction. [Citing cases] And a party moving for a directed verdict admits facts in evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. [Citing cases].'

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:

'* * * As was stated in Adams v. State [Fla.App., 102 So.2d 47], this court is fully cognizant of the rule that conviction may be had upon circumstantial evidence alone, and although the State's burden does not extend to an absolute metaphysical and demonstrative certainty in proving a crime by circumstantial evidence, it must be sufficient as to every essential element of the crime charged to meet the requirement of the rule as set forth above. When measured in a light most favorable to the State, the evidence adduced in this case is not sufficient to close the gap to the reasonable hypotheses of innocence; and is therefore insufficient to sustain conviction.'

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:

'Evidence that a lottery was being operated in the home and on the premises of accused raises a presumption that he was aiding and abetting in the operation of the lottery. The finding of lottery paraphernalia in the home of accused creates a presumption that he was the owner and possessor thereof, and that he was maintaining a lottery; but such presumption is a rebuttable one. * * *.'

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:

'Possession is usually defined as having personal charge of or exercising right of ownership, management or control of the thing said to have been possessed. To constitute possession, there need not necessarily be an actual manucaption of the things possessed; that is, it does not have to be held in the hand, nor is it necessary that it be otherwise actually upon the person of the possessor. There must, however, be a conscious and substantial possession by the accused as distinguished from a mere involuntary or superficial possession. Whether or not the accused, or any of them, were in conscious and substantial possession of the things alleged to have been found in the premises said to have been owned by the defendants Diecidue, may be lawfully inferred by the surrounding circumstances, especially in the absence of contrary or exculpatory evidence.' (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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3 cases
  • Diecidue v. State, 30913
    • United States
    • United States State Supreme Court of Florida
    • May 24, 1961
    ...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......
  • Walker v. State
    • United States
    • Court of Appeal of Florida (US)
    • October 16, 1984
    ...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......
  • McGough v. State, s. 72--861
    • United States
    • Court of Appeal of Florida (US)
    • March 20, 1974
    ...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. ...

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