Irvin v. State

• Decision Date: 24 July 1906
• Citation: 52 Fla. 51,41 So. 785
• Parties: IRVIN v. STATE.
• Court: Florida Supreme Court

41 So. 785

52 Fla. 51

IRVIN v. STATE.

Florida Supreme Court, Division B.

July 24, 1906

Error to Criminal Court of Record, Hillsborough County; Horace C Gordan, Judge.

E. G Irvin was convicted of keeping a gaming table, and brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

When a statute makes either of two or more distinct acts, connected with the same general offense and subject to the same punishment, indictable as distinct crimes, they may, when committed by the same person at the same time, be coupled in one count and constitute but one offense; and such an indictment will not be subject to the charge of being duplicitous.

Where an information or indictment is complained of on the ground of duplicity, the defendant must make the assault thereon by demurrer or by motion to quash before verdict rendered. If he delays presenting such issue until after verdict, he will be held to have waived the same. He cannot raise such issue in a motion for new trial or by a motion in arrest of judgment.

There is no merit in the contention that an indictment charging the defendant simply with keeping and maintaining a gambling table is defective because it fails to set forth the nature or kind of table that he is charged with keeping. The statute aims its penalty at the use to which a table is put or for which it is kept, without reference to the kind or character of such table. Any manner or kind of table kept and maintained for gambling purposes falls within the inhibition of the statute.

Where the penalty prescribed by the statute for the commission of a crime is imprisonment in the state penitentiary or a money fine, a primary sentence of imprisonment in the county jail is unauthorized. In such a case a sentence to imprisonment in the county jail can properly be imposed only as an alternative penalty upon failure to pay a money fine imposed.

Where there is no error affecting the merits of the trial of a criminal cause that will necessitate the grant of a new trial or vacation of the verdict found, but there is simply an unauthorized sentence imposed, an appellate court should reverse the judgment and sentence imposed, leaving the verdict to stand as a basis for a new and proper sentence and should remand the cause for proper sentence.

COUNSEL Jno. P. Wall, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

TAYLOR, J.

The plaintiff in error, hereinafter designated as defendant, was informed against, tried, convicted, and sentenced for the crime of keeping and maintaining a gaming table, in the criminal court of record for Hillsborough county, and seeks reversal here by writ of error. The third count of the information, upon which the conviction was had, omitting its formal commencement, is as follows: 'That the said E. G Irvin, alias Mose Irvin, whose Christian name to the Solicitor is unknown, late of the county of Hillsborough aforesaid, on the thirteenth day of February in the year of our Lord one thousand nine hundred and six, and at divers other times and days since such day and the filing of this information, with force and arms at and in the county of Hillsborough aforesaid, did then and there unlawfully and feloniously have, keep, exercise, and maintain a certain gambling table and cards and poker chips for the purpose of gaming and gambling, against the form of the statute,' etc.

The errors assigned are:

(1) That the court erred in denying the defendant's motion for new trial.

(2) Because the court erred in denying the defendant's motion in arrest of judgment.

(3) Because the court erred in the sentence pronounced upon the defendant in the lower court, in that the statute under which he was convicted does not permit imprisonment in the county jail, except for the nonpayment of a fine.

(4) Because the court erred in passing the sentence upon the defendant, in that imprisonment in the county jail cannot be imposed as a primary punishment.

The first of these assignments will be disposed of later.

The defendant's motion in arrest of judgment, the denial of which is assigned as the second error, was upon the following grounds:

'(1) Because the third count in the information, upon which this defendant was convicted, is bad for duplicity.

'(2) Because the said third count in said information is bad for duplicity, in that it charges the defendant, not only with keeping and maintaining a gaming table, but also of having and keeping cards and chips, which, if anything, are devices.

'(3) Because the said third count in said information does not set forth the nature or kind of table, which the defendant is charged with maintaining, and he was by such failure not sufficiently apprised of the matters charged against him.'

There was no error in the denial of this motion.

Section 2644 Rev. St. of 1892, upon which the information is predicated, provides as follows: 'Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling, or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whether heretofore prohibited or not, shall be punished by imprisonment in the state prison not exceeding three years, or by fine not exceeding five thousand dollars.' It is contended that under this statute the keeping of a gaming table is a distinct offense, for which a party may be indicted and convicted, and...