Jarrell v. State

• Decision Date: 03 January 1939
• Citation: 135 Fla. 736,185 So. 873
• Parties: JARRELL v. STATE.
• Court: Florida Supreme Court

185 So. 873

135 Fla. 736

JARRELL v. STATE.

Florida Supreme Court, Division B.

January 3, 1939

Rehearing Denied Feb. 6, 1939.

Error to Circuit Court, Seminole County; M. B. Smith, Judge.

Joseph W. Jarrell was convicted of violating statute forbidding lotteries, and he brings error.

Affirmed.

COUNSEL

George A. DeCottes, of Sanford, for appellant.

George Couper Gibbs, Atty. Gen., Tyrus A. Norwood, Asst. Atty. Gen and Lloyd F. Boyle, Asst. State Atty., of Sandford, for the State.

OPINION

WHITFIELD Presiding Justice.

This writ of error was taken to a judgment of conviction and sentence to one year's imprisonment in the State Penitentiary on an indictment charging in six counts violations of the statute forbidding lotteries.

On motion to quash, the fifth count was eliminated and trial was had on the remaining five counts and a plea of not guilty after a motion for a bill of particulars as to each count had been denied. It does not appear that the order denying the bill of particulars was excepted to.

The first count charged 'that Joseph W. Jarrell of the County of Seminole and State of Florida, on the 17th day of November, in the year of our Lord One Thousand Nine Hundred and Thirty-seven, in the County and State aforesaid, and at divers times between September 29th, 1937, and November 17th 1937, did conduct a lottery for money and by means of a lottery did dispose of money, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the Grand Jurors unknown; contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State of Florida.'

Other counts differed only in charging that the defendant

'did set up and promote a lottery for money, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the Grand Jurors unknown;

'did by means of a certain lottery, dispose of money, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the Grand Jurors unknown;

'did transmit certain lottery tickets and coupons representing an interest in a lottery for money yet to be played, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the Grand Jurors unknown;

'did sell lottery tickets and coupons representing an interest in a lottery for money yet to be played, the aforesaid lottery being commonly known as Cuba, a further description of said lottery being to the Grand Jurors unknown;'

Grounds of the motion to quash are numerous and are adapted to each count. In substance they are that each count is vague, indefinite and uncertain; charges no offense against the laws of Florida; does not sufficiently apprize the defendant of the nature of the accusation preferred against him; charges no offense punishable by law under section 23, Article 3 of the Constitution, prohibiting lotteries in the state of Florida; is bad for duplicity in that it purports to charge two offenses; fails to charge the manner, means or extent in which defendant conducted a lottery; alleges conclusions as to certain material elements of the offense purported to be charged, and alleges no facts from which said conclusions could be drawn; does not properly and sufficiently allege the means employed or the date or place of the commission of the offense sought to be charged; is so framed that it in no way protects the defendant from a second prosecution for the same offense; is so framed that it cannot be determined whether it purports to charge a misdemeanor or a felony.

The motion for bill of particulars as to each of the five remaining counts of the information and the specifications as to the first count are as follows:

'Comes now the defendant in the above entitled cause and represents unto the court that the indictment returned against him herein on the 22nd day of November, A. D. 1937, charging this defendant with a felony in connection with a lottery is so framed as to hinder and seriously embarrass the defendant in the preparation of his defense to to the charges set forth in said indictment, and unless the State is required in this cause to furnish unto the defendant a bill of particulars there is grave danger that the accused may be deprived of his rights, and justice may not be done between the State of Florida and this defendant, and this defendant further represents that because of the phraseology of the charging parts of the various counts of said indictment, that said indictment and each and every count thereof is wanting in specific details, of which the defendant is justly entitled to be informed before trial, and the defendant further represents that the bill of particulars hereby requested is necessary for the proper administration of justice as the defendant herein has a right to demand the nature and cause of the accusation against him.

'Wherefore, defendant moves this court that the State of Florida be required to forthwith furnish unto the defendant a bill of particulars to each and every count severally of the indictment to the nature and extent as hereinafter set forth.

'As to first count:

'(1) Specifications in detail of the ultimate facts relied upon by the State to sustain the charge that the defendant did conduct a lottery for money.

'(2) Specifications in detail showing the manner and means engaged and employed by the defendant in conducting a lottery.

'(3) The kind of lottery so conducted by the defendant.

'(4) The particular place in Seminole County where said lottery was so conducted.

'(5) The specific dates between September 29th, 1937, and November 17th, 1937, on which the defendant did conduct a lottery.

'(6) Specifications in detail of facts stated as a conclusion in the first count to show how defendant did conduct a lottery for money.

'(7) A more particular description of the manner in which the lottery charged in the first count, commonly known as Cuba, is played and conducted.'

Specifications as to other counts are similarly stated to refer to the counts severally.

Section 23, Article 3 of the Florida Constitution is as follows:

'Lotteries are hereby prohibited in this State.'

Section 7667(5509), C.G.L., is as follows:

'It shall be unlawful for any person, firm or corporation in this State to set up, promote or conduct any lottery for money or for anything of value; or by means of any lottery to dispose of any money or other property of any kind whatsoever; or to conduct any lottery drawings for the distribution of prizes by lot or chance, or to advertise any such lottery scheme or device in any newspaper or by circulars, posters, pamphlets or otherwise; or to sell, or to offer for sale, or to transmit, by mail or otherwise, any lottery tickets, coupons, or share in or fractional part of any lottery ticket, share or coupon; or to attempt to operate, conduct or advertise any lottery scheme or device; or to have in his, their or its possession any lottery wheel, implement or device whatsoever for conducting any lottery or scheme for the disposal by lot or chance of anything of value; or to have in his, their or its possession any lottery ticket, or evidence of any share or right in any lottery ticket, or in any lottery scheme or device; or to have in his, their or its possession any lottery advertisement, circular, poster or pamphlet or any list or schedule of any lottery prizes, gifts or drawings, or to aid or assist in the setting or conducting of any lottery, either by writing, printing or otherwise; or to be interested in, or connected in any way with any lottery or lottery drawing; or to aid or assist in the sale, disposal or procurement of any lottery ticket, coupon, share or right to any drawing therein. Any violation of this section shall be a felony, and shall be punished by a fine of not less than five hundred dollars, nor more than five thousand dollars, or by imprisonment in the State penitentiary not less than one year, or more than ten years. (Ch. 4373, Acts 1895, § 1.)'

Section 7669(5511), C.G.L., provides:

'Whoever sets up, promotes or plays at any game of chance by lot or with dice, cards, numbers, hazard or any other gambling device whatever for, or for the disposal of money or other thing of value or under the pretext of a sale, gift or delivery thereof, or for any right, share or interest therein, shall be fined not exceeding one hundred dollars, or be imprisoned not exceeding three months.'

Counsel for plaintiff in error contends in effect that no penal offense pertaining to any aspect of a lottery, such as is prohibited by the constitution, is properly charged in any of the counts; that it cannot be determined from the language of any of the counts whether the offense sought to be charged is a felony under section 7667, C.G.L., or a misdemeanor under section 7669, C.G.L.; that each count is vague and indefinite and does not sufficiently apprise the defendant of the nature of the charge against him, or protect him from prosecution twice for the same offense.

The above quoted statutes were enacted as sections 1 and 3 of Chapter 4373, Acts of 1895, the title to the Chapter being 'An Act to Prohibit Lotteries and Games of Chance, and to Prescribe Penalties Therefor.' The purpose of Chapter 4373 is to effectuate the provision of the constitution that: 'Lotteries are hereby prohibited in this State'; and the courts should interpret and apply the statute in prosecutions under it so as to enforce the command of the constitution, when such enforcement does not violate any other provision of the constitution. In this prosecution the defendant has a constitutional right to demand that an information against him shall be...