Hardison v. Coleman

Citation164 So. 520,121 Fla. 892
PartiesHARDISON v. COLEMAN, Sheriff.
Decision Date11 December 1935
CourtUnited States State Supreme Court of Florida

En Banc.

Proceeding in the original jurisdiction of the Supreme Court on petition for a writ of habeas corpus by L. B. Hardison against D. C Coleman, as sheriff of Dade county, Fla.

Petitioner discharged.


H. H. Wells, B. K. Roberts, and William K Whitfield, all of Tallahassee, and J. Fritz Gordon, of Miami for petitioner.

G. A. Worley, State's Atty., J. W. Watson, Jr., and Abe Aronovitz, all of Miami, for respondent.


ELLIS Presiding Justice.

L. B. Hardison in November, 1935, kept in his place of business a mechanical device or machine commonly called and known as a 'slot machine.'

A warrant for his arrest was issued by a justice of the peace upon an affidavit purporting to charge Hardison with the crime of conducting a lottery for money. The language of the warrant issued, and upon which he was arrested, charges the alleged offense in the following words: 'One L. B. Hardison did then and there unlawfully and feloniously set up and conduct a lottery for money.' That language is followed by a description of the so-called lottery, which it is alleged consisted of a certain mechanical device into which persons were 'solicited and permitted to insert in said mechanical device a certain coin or coins, namely: five cents (5¢ ) pieces, commonly known and called 'nickels,' lawful money of the United States of America, in consideration of which said nickel and nickels so deposited' the person or persons so depositing the same 'were allowed and permitted to pull a certain lever and handle on said mechanical device whereby certain wheels were set in motion with an understanding and agreement that if the said wheels when put in motion should stop in a certain order,' that the person 'so inserting coins in said machine and setting said wheels in motion by means of said handle and lever, would win a prize and prizes consisting of money, to-wit: five cent (5¢ ) coins, commonly called 'nickels' in numbers and amounts dependent upon the position in which said wheels so set in motion should stop and also under the agreement and understanding that if said wheels did not stop in a certain order,' then the 'persons playing said machine and inserting coins therein should receive nothing.'

Such is the description of the device or game which it is alleged constituted the lottery which Hardison was accused of setting up and maintaining in his place of business.

Hardison was arrested and brought before the justice of the peace for a preliminary hearing. His counsel moved to quash the warrant upon the grounds that the warrant charged no offense against any laws of the state of Florida and that the machine described was a duly licensed machine under the laws of the state of Florida. The committing magistrate committed the accused to jail in default of a bond in the penal sum of $500 required of him for his appearance at the next term of the criminal court of record.

Hardison applied to this court for a writ of habeas corpus and seeks his release from custody upon the ground that the warrant and the evidence adduced under it before the committing magistrate show the commission of no offense by him under the laws of the state.

The statute under which the petitioner was charged with setting up and conducting a lottery denounces the setting up, promotion, or conducting of any lottery for money or for anything of value, or the disposing of any money or property by means of a lottery, or conducting lottery drawings for the distribution of prizes by lot or chance, or the advertising of a lottery scheme or device, or the selling of lottery tickets. The offense is made a felony under the statute. See section 7667, C.G.L. 1927.

It is apparent from the reading of the warrant that the machine which is referred to is an ordinary 'slot machine' of the type used for petty gambling by persons who, entering a place where such a machine is established, may desire to risk a coin of small denomination upon the chance of receiving nothing in return or a possible winning of several coins of the same denomination as that placed in the machine.

However plain or ornate the machine may be, the description of the one mentioned in the warrant differs in no material respect from the machines of the type above described.

In the case of Kirk v. Morrison, 108 Fla. 144, 146 So. 215, 216, this court, considering a case where a 'slot machine' was used for the purpose of vending packages of mints, and in the operation of the machine the person playing might receive not only the value of the coin deposited in mints but brass disks which might be used for again playing the machine, but not for additional mints nor for the purchase of other merchandise, said:

'There is no law in Florida prohibiting the operation of 'slot machines' merely because they are slot machines. Slot machines per se are not unlawful, but they may be unlawful if designed to operate for the purpose of gaming or gambling. And slot machines may be so constructed as to constitute gambling devices per se, or they may become gambling devices by the manner in which they are actually used, although not intrinsically designed or constructed as gambling machines.' (Italics supplied.)

In the case of McBride v. State, 39 Fla. 442, 22 So. 711, 713, this court, in defining the terms 'gaming' or 'gambling,' in an opinion by Mr. Chief Justice Taylor, said that:

'The wagering, betting, or laying of money or other thing of value upon the transpiring of any event whatsoever, whether it be upon the result of a game of chance or upon a contest of skill, strength, speed, or endurance, whereby one party gains and the other loses something for nothing, whether the parties betting be the actors in the event upon which their wager is laid or not, isgaming or gambling, within the meaning of these acts.' (Italics supplied.)

The court had under consideration section 1, c. 3764, Laws Florida 1887, section 2644, Rev.Stats. 1892, carried into the C.G.L. of 1927 as section 7657 (section 5499, R.G.S. of 1920), which denounces the offense of keeping or maintaining a gaming table or apparatus, house, or other place for the purpose of gaming or gambling.

That definition of the terms 'gaming' or 'gambling' was again approved by this court in the case of Reinmiller v. State, 93 Fla. 462, 111 So. 633, in an opinion by Mr. Justice Buford in which all the members of the court concurred. Both cases were again referred to and approved by this court in Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51, as to the definition of the terms mentioned.

The warrant in this case does not charge the petitioner with gambling, nor maintaining a place or machine for the purpose of gaming or gambling. Indeed, if such had been its purpose, it fails to definitely allege the existence of the essential element that the petitioner won or lost something of value in the play as the other party to the transaction. The warrant was intended to charge the petitioner not with gaming or gambling or maintaining a place or machine for such purpose in violation of the provisions of section 7657, C.G.L., supra, but with the offense of setting up and conducting a lottery by means of the machine described.

The contention in behalf of the respondent sheriff is that such a machine is a lottery when operated in the manner described in the warrant and the setting up and conducting of such a mechanical device violates the provisions of section 7667, C.G.L. 1927.

It may be true that every lottery is a game or gambling device, but it does not follow that every game or gambling device is a lottery within the meaning of section 23, article 3, of the Constitution of 1885.

In the case of State v. Vasquez, 49 Fla. 126, 38 So. 830, this court, speaking through Mr. Justice Cockrell, said that a machine into which a person put a check costing 5 cents, giving to such person a 'chance' of getting, in addition to a cigar and a tune from a musical instrument, 'two or more--up to forty--additional checks, that were good for five cents each in trade at the place in which the machine was placed, and also stood a chance of getting no additional checks, but only the cigar and the music,' can by no possible construction 'be considered as ejusdem generis with lung testers, striking machines, weighing machines, chewing gum stands, or automatic penny-in-the-slot machines.'

Vasquez was charged with keeping a gaming apparatus. On writ of habeas corpus from the circuit court he was discharged from custody. This court reversed the judgment of the circuit court.

In that case the court held that chapter 5106, Acts 1903, purporting to license the keeping of lung...

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8 cases
  • Greater Loretta Imp. Ass'n v. State ex rel. Boone, 37933
    • United States
    • United States State Supreme Court of Florida
    • 22 Abril 1970
    ...on in the same term, this Court interpreted its holding in Lee in another slot machine case, Hardison v. Coleman, in the following manner, 121 Fla. 892, 900, 164 So. 520, 524 'In the able briefs submitted in this case in behalf of respondent we discover no argument which induces this Court ......
  • Gretna Racing, LLC v. Dep't of Bus. & Prof'l Regulation, 1D14–3484.
    • United States
    • Court of Appeal of Florida (US)
    • 2 Octubre 2015
    ...will become [illegal lotteries]; but we leave that question to be determined when a specific case arises."); see also Hardison v. Coleman, 121 Fla. 892, 164 So. 520, 524 (1935) (lotteries include "such gambling devices or methods which because of their wide or extensive operation a whole co......
  • Bradenton Group, Inc. v. Department of Legal Affairs, State of Fla., s. 96-2661
    • United States
    • Court of Appeal of Florida (US)
    • 3 Octubre 1997
    ...but the court left that determination for another day. Id. Another slot machine case was presented to the court in Hardison v. Coleman, 121 Fla. 892, 164 So. 520 (1935). Hardison owned a slot machine and was arrested for setting up and conducting a lottery in violation of the immediate pred......
  • Gretna Racing, LLC v. Dep't of Bus. & Prof'l Regulation, CASE NO. 1D14-3484
    • United States
    • Court of Appeal of Florida (US)
    • 29 Mayo 2015
    ...will become [illegal lotteries]; but we leave that question to be determined when a specific case arises."); see also Hardison v. Coleman, 164 So. 520, 524 (Fla. 1935) (lotteries include "such gambling devices or methods which because of their wide or extensive operation a whole community o......
  • Request a trial to view additional results

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