Ferrara v. State

• Decision Date: 26 March 1958
• Citation: 101 So.2d 797
• Parties: Jack FERRARA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 797

101 So.2d 797

Jack FERRARA, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

March 26, 1958.

Rehearing Denied April 28, 1958.

Frank Ragano and Mark R. Hawes, Tampa, for appellant.

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

THOMAS, Justice.

When appellant was adjudged guilty of participation in a lottery by selling chances in a lottery to various persons, and was sentenced to serve a term in the penitentiary, this appeal from the judgment and sentence was taken.

At the beginning of the trial the question of the validity of a search of the appellant arose and the judge upon suggestion of the county solicitor conducted an inquiry in the absence of the jury to determine just what had transpired when the appellant was halted by the officers and the lottery tickets were taken from him.

During the examination of one of the policemen it developed that the appellant was being followed because the officers had information from a 'confidential source' that he was engaged in the lottery business. The police had been told by the informer that he purchased lottery tickets from the appellant every Saturday morning. Acting on this intelligence the police had watched the appellant's house every Saturday morning for three weeks prior to the arrest and had noted the course he took about the same hour each day when he left in his green Buick automobile en route to what is known in 'Cuba' circles as the 'check-up house.'

On the day of the arrest, as the officers were following the appellant, he passed a red light and they stopped him and asked to examine his driver's license. They reminded the appellant that he had gone through the red light and told him they had reason to believe he was carrying 'Cuba' tickets whereupon he secured a roll of the tickets from his pocket and threw it into the street. One of the officers retrieved the tickets and approximately $1,000 was taken from appellant's person.

When the jury returned to the courtroom the testimony was, in substance, repeated except that the court faithfully undertook to prevent any reference to events occurring prior to the actual pursuit and arrest. When the jury returned to the courtroom and the examination of the officer who had testified before the judge was resumed the witness said, while describing the arrest, that the appellant when asked for his driver's license was told that the witness 'had reason to believe that he (appellant) was transporting bolita and possession of bolita at this time.' Before the jury was recalled the attorney for appellant tried repeatedly to elicit the name of the person from whom the officer had obtained information about appellant's activities in the conduct of lotteries. Afterward he continued his efforts although he knew from his experience in the inquiry before, he would not be successful.

Nevertheless in his persistent attempts he injected the matter into the case and now poses the question whether or not error was committed when the officer was permitted to make the statement we have just quoted, and he leans heavily on the decision of this court in Collins v. State, Fla., 65 So.2d 61, 66, for support of his position. It is true that in the cited case we held that testimony of a witness that he had information from 'some one or other' about the defendant's violation of the lottery laws was inadmissible because it was hearsay and, besides, afforded no opportunity for cross-examination. In that case the testimony was admitted as material "to justify a basis for search and seizure" without a warrant. We held, too, that there was no valid search incident to a lawful arrest inasmuch as the defendant was not shown to have committed any act which warranted the officers stopping him on the highway.

No question now before us involves a search warrant, but we are concerned only with the authority of the officers to search once the appellant was halted. He was quite properly stopped because he had violated the law by driving through a traffic light that was red. During the conversation with the officers he had exposed and discarded a roll of paper which they had secured and found to be lottery tickets. Then and there, in our opinion, the tickets became admissible evidence. State v. Simmons, Fla., 85 So.2d 879.

It appears that the procedure which the appellant now considers to have been damaging to his defense was created by the efforts to secure the name of an informer from whom the officer, presumably, got the impression that appellant was engaged in lottery operations. We stress the facts that no investigation was being held to determine whether or not the officers had information that would have been sufficient to obtain a search warrant had they had the time to apply for one, as was the case in Collins v. State, supra, and that, except for the deductions from appellant's own strategy, the jurors heard only that the officer told appellant he had reason to believe appellant was engaged in transportation or possession connected with lotteries. This 'reason to believe' might easily have come from sources other than an informer.

We conclude that in these circumstances we should not accept the argument that the judgment should be reversed because lurking in the background was some informer whom the appellant should have been permitted to examine.

Before passing to the next point we relate that appellant though sentenced on one count of the information was found guilty on four counts in one of which he was specifically charged with possession of lottery tickets.

Appellant's remaining point constitutes a challenge of the use and distribution of a pamphlet titled 'Handbook for Trial Jurors serving in all Courts of Record in Hillsborough County, Florida,' which bears the printed endorsement of all the then Circuit Judges of the Thirteenth Judicial Circuit, the Judge of the Criminal Court of Record, by whom the present case was tried, and the County Judge, and contains a statement of these judges urging jurors to read the booklet with great care in order that they may be aided in performing their important duty. The handbooks are sent to the jurors with the summonses and on each the juror is admonished to surrender the booklet upon reporting for service and not to take it into the jury room.

In the preface appears an eloquent statement of the responsibilities of a juror followed by 'A Juror's Creed.' In the creed the juror is described as a seeker of truth who must listen...