Gaskins v. State

• Decision Date: 10 October 1956
• Citation: 89 So.2d 867
• Parties: Edward GASKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 867

89 So.2d 867

Edward GASKINS, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida, En Banc.

Oct. 10, 1956.

Charles C. Corces, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., Joseph P. Manners and B. Jay Owen, Asst. Atty. Gen., for appellee.

THORNAL, Justice.

Appellant seeks reversal of a judgment of guilty and sentence to eighteen months imprisonment, pursuant to a verdict of the jury convicting him of violation of various phases of the state lottery laws. Seven questions are presented by the brief of appellant but only two of them merit consideration.

The first count of the information reads as follows:

'Paul B. Johnson, County Solicitor for the County of Hillsborough, charges that Edward Gaskins of the County of Hillsborough and State of Florida, on the 15th day of January, 1955, in the County and State aforesaid, did unlawfully aid and assist in the setting up, promoting, or conducting of a loggery for money, commonly known as Bolita and Cuba, a further description of which is to the Solicitor unknown, or was unlawfully interested in and connected with said lottery, a further description of which is to the Solicitor unknown, by then and there unlawfully having in his possession certain records containing and showing the shares and interests in the aforesaid lottery which had been sold by divers persons, the names of such persons being to the Solicitor unknown; and' (Emphasis ours.)

A motion was made to suppress certain evidence on the ground that it was obtained as a result of an unlawful search of appellant's automobile.

The attack on the first count of the information quoted above is based on the contention that it charges in one count commission of both a felony and misdemeanor condemned by F.S. § 849.09, F.S.A. In a very similar case, Fletcher v. State, Fla.1953, 65 So.2d 845, 846, we held that a count charging a felony, as did the count in the case before us, and then using explanatory and descriptive language which if independently alleged would constitute a misdemeanor, must be construed as charging a felony and not as containing two separate charges of two separate offenses. In Fletcher v. State, supra, written by the late Mr. Justice Mathews, we held:

'* * * We cannot divide the count into pieces. We must construe the count as a whole. The count also charges that the appellant 'was interested in and connected with a lottery for money' and then goes further and alleges what he did by saying 'in that he received, collected and transported money and records of the sale of chances on a lottery * * *.' The count was sufficient to charge a felony.'

See also Nelson v. State, Fla., 83 So.2d 687.

With reference to the legality of the search, which was attacked by the motion to suppress, the evidence showed that at 7:10 p. m., January 15, 1955, two Tampa police officers, while patrolling their zone, came upon a 1937 Model Dodge pickup truck, parked within a few feet of the unlighted intersection of Memorial Highway and Manhattan Avenue in the City of Tampa; the left wheels of the vehicle were on the pavement; it was located close to a dark intersection; contained no lights and was unattended. Concluding that the vehicle parked under such circumstances constituted a serious traffic hazard, the officers stopped to investigate it. One of them checked the front end while the other checked the license plate. They naturally looked inside the cab of the truck, the windows to which were open, and they located under the seat a number of paper envelopes containing substantial sums of money and pieces of paper which they later identified as 'bolita pay slips'. Apparently appellant was immediately across the street from the truck but within less than a minute after the investigation started, he walked over to the truck where he was interrogated by one of the officers and although the truck was identified as his, he disclaimed any knowledge of the envelopes and their incriminating contents.

The appellant was taken into custody, at first charged with illegal parking and subsequently charged in the Criminal Court as alleged in the information. The evidence obtained in the search was exhibited at the trial.

Reversal is sought on the contention that the search was illegal, having been made without a search warrant and just before the arrest and that therefore the evidence obtained as the result of the search should not be admitted. We have held numerous times that only unreasonable searches and seizures are condemned by the Constitution. See Joyner v. State, 157 Fla. 874, 27 So.2d 349; Ellis v. State, 92 Fla. 275, 109 So. 622. Where the search itself is reasonable and is conducted within the limits...