Fuller v. State

• Decision Date: 24 June 1947
• Parties: FULLER et al. v. STATE.
• Court: Florida Supreme Court

31 So.2d 259

159 Fla. 200

FULLER et al. v. STATE.

Florida Supreme Court

June 24, 1947

Rehearing Denied July 30, 1947

Appeal from Circuit Court, Marion County; F. R. Hocker judge.

Charles A Savage and Carl F. Crossley, both of Ocala, and Edward W Waybright, Sr., of Jacksonville, for appellants.

J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

CHAPMAN, Justice.

On November 10 1945, an information in five counts drafted under the several provisions of Section 849.09, Fla.Stats. 1941, F.S.A. was filed in the Circuit Court of Marion County, Florida, against Fletcher Fuller, Abner Fuller, Emory Knight and Bernard Knight, Fletcher Fuller and Abner Fuller each filed motions for severance, reciting various grounds for the entry of an order granting separate trials but these motions were denied. The information on motion of the State was nolle prossed as to Emory Knight; a severance ordered and continuance granted as to Bernard Knight. Fletcher Fuller and Abner Fuller upon being arraigned entered pleas of not guilty.

Prior to arraignment of appellants below, the State Attorney filed a bill of particulars in support of the information and pertinent parts are, viz.:

'That the defendants operated and maintained a Lottery in a house or houses located approximately One Hundred yards North of the Seaboard Air Line Railway Right of Way on the East side of what is known as Anthony Road, just North of the City Limits of the City of Ocala; said place of business being known as 'Do Drop Inn,' along with several buildings within the curtilage, from November 10th, 1943 to November 10th, 1945 continuously.

'And the State Attorney further says: That several of said houses were used by the said Defendants for gambling and gambling purposes and gambling headquarters for the operation of a lottery; that also from said buildings operations were conducted by the sale of tickets on various lottery games more particularly known as 'Cuba' and 'Bolita', sometimes known as 'night-house', throughout Marion County, Florida, continuously from Novembor 10th 1943 to November 10th 1945, and that various other houses, a more particular description of same being to the State Attorney unknown, were also used at times in Marion County, Florida, for gambling purposes over said period which are to the State Attorney unknown.'

The case was tried before a jury which resulted in a verdict of not guilty as to counts 1, 2 and 3 of the information and guilty as to counts 4 and 5 which are, viz.:

'And the State Attorney aforesaid, upon his oath aforesaid, further information makes that Fletcher Fuller, Abner Fuller, Emory Knight and Bernard Knight, in the County of Marion, in the State of Florida, at divers times between the 10th day of November 1943 and the 10th day of November 1945, did transmit certain lottery tickets and coupons representing an interest in a lottery yet to be played, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the State Attorney unknown.

'And the State Attorney aforesaid, upon his oath aforesaid, further information makes that Fletcher Fuller, Abner Fuller, Emory Knight and Bernard Knight, in the County of Marion, in the State of Florida, at divers times between the 10th day of November, 1943, and the 10th day of November 1945, did sell lottery tickets and coupons representing an interest in a lottery yet to be played, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the State Attorney unknown. Contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Florida.'

The defendants below for the first time in their motion for a new trial challenged the legal sufficiency of Counts 4 and 5 of the information which was raised by grounds 3, 4, 5, and 6, and are, viz.: (3) 'The verdict of guilty on the 4th count of the information is invalid, because said Count does not charge a crime.' (4) 'That the verdict on the 5th Count of the information is invalid because it fails to charge a crime.' (5) 'That the verdict on the 4th Count of the information is invalid in that if fails to charge a crime because it does not allege that the lottery was for money or other thing of value.' (6) 'The verdict in the 5th Count of the information is invalid in that it fails to charge a crime, because it does not allege that the lottery was from money or other thing of value.' A motion for new trial was made and denied when the trial court sentenced Fletcher Fuller and Abner Fuller to the State Prison for a period of three years at hard labor. They have appealed here.

Counsel for appellants contend that the ommission from Counts 4 and 5 of the information of the following pertinent words of Section 849.09, F.S.A., viz.: 'for money or for anything of value,' renders each of the counts fatally defective and invalid and as a consequence the judgments of conviction entered below must by this Court be reversed. Counsel cite and rely on our holdings in Strachaan v. State, 116 Fla. 736, 156 So. 885; D'Alessandro v. State, 116 Fla. 749, 156 So. 702, 703; Farrell v. State, 135 Fla. 736, 185 So. 873.

Count 4 charges that the appellants between the 10th day of November 1943 and November 10th 1945, did transmit lottery tickets and coupons representing an interest in a lottery yet to be played, commonly known as 'Cuba.' Count 5 charge that the appellants between the 10th day of November 1943 and the 10th day of November 1945 did sell lottery tickets and coupons representing an interest in a lottery yet to be played commonly known as 'Cuba.' The gravamen of Count 4 was to transmit lottery tickets commonly known as 'Cuba' representing an interest in a lottery yet to be played. The gravamen of Count 5 was to sell lottery tickets commonly known as 'Cuba' representing an interest in a lottery yet to be played.

The language of Section 849.09, F.S.A., is broad, comprehensive, and designed to make unlawful all lottery schemes; devices or transactions. It is unlawful for any person in this State to set up, promote or transmit by mail, or otherwise, any lottery tickets. It is unlawful for any person in this State to set up, promote or to sell, offer for sale, any lottery tickets. The words 'for money or other thing of value' were pertinent and material in the cited cases, but Counts 4 and 5 are drafted under other provisions of Section 849.09 and these words are wholly inapplicable to the case at bar.

Arguendo, let us concede, that the words, 'for money or other thing of value' are pertinent, material and necessary to sustain a conviction in the case at bar. We can simply turn to the testimony of the witness Hampton who paid $8.00 for 'Cuba' and at the drawing won the number 70. He was paid $420. but contended that he should have received an additional sum. He telephoned Fletcher Fuller at his place of business and Fuller came down and he with Hopkins talked over the disputed amount with Hampton, the result being that additional money was sent to Hopkins and by him delivered to Hampton. Other witnesses testified to the sale of Cuba for the Fullers and headquarters of the enterprise was at the Fuller Music Company's place of business. In the case of Victor v. State, 141 Fla. 508, 193 So. 762, we held that it was a matter of common knowledge that the game of 'New Bond' was a scheme for the distribution of prizes by lot or chance. What has been said by us of the game of 'New York Bond' can or may be said of the games of 'Cuba' and 'Bolita'.

The contention that the omission of the words 'for money or other thing of value' rendered Counts 4 and 5 invalid was raised on motion for a new trial while Section 909.06 F.S.A. requires all motions to quash informations or indictments be made before or at the time he pleads thereto and if a defendant fails so to do, then all objections to the infirmities of the information are waived and cannot be raised on motion for new trial. See West v. State, 149 Fla. 436, 6 So.2d 7. Courts under Section 920.05, Fla.Stats. 1941, F.S.A., can grant motions in arrest of judgment only (a) where the information does not charge anoffense; (b) the Court is without jurisdiction of the case; (c) because of uncertainty of the jury's verdict. Therefore our holdings in Strachaan v. State, D'Alessandro v. State, and Jarrell v. State, supra, as cited by counsel for appellants for a reversal are not controlling nor applicable in the case at bar because a different set of facts are here presented along with the allegation in counts 4 and 5 of the information of the violation of a different portion of Section 849.09, Fla.Stats. 1941, F.S.A., than were charged in the cited cases.

The record discloses that Fletcher Fuller was the record title owner of the real estate upon which the buildings were situated and controlled the same. The Fuller Music Company occupited one of the buildings, another was occupied by the Do Drop Inn and other buildings owned by Fuller were used for different purpose. The evidence shows that the 'Cuba' salesmen returned their books and cash to a table situated in one of these buildings and some of the Bolita salesmen obtained their books and tickets at the table. The Fullers in some instances sent the books and Bolita tickets to their salesmen. It is shown that many of the throwings or Bolita drawings were held in one of these buildings when Fletcher Fuller and Abner Fuller were present. The Marion County officers arrested Abner Fuller on the property and requested of him permission to search the property, which was granted, although Fletcher Fuller was not present when Abner Fuller was arrested and granted permission to search the premises. The...