Johnson v. State

• Decision Date: 09 July 1946
• Citation: 157 Fla. 685,27 So.2d 276
• Parties: JOHNSON v. STATE.
• Court: Florida Supreme Court

27 So.2d 276

157 Fla. 685

JOHNSON v. STATE.

Florida Supreme Court

July 9, 1946

Rehearing Denied Sept. 12, 1946.

Appeal from Circuit Court, Lee County; W. T. Harrison Judge.

W. D. Bell, of Miami, and R. Percy Jones and E. M Magaha, both of Fort Myers, for appellant.

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

BUFORD, Justice.

The appellant being informed against by an information in three counts, each count charging violation of Sec. 849.09, Florida Statutes 1941, same F.S.A., was tried and convicted under each of the three counts of the information.

On hearing for motion for new trial the court denied the motion as to the conviction under counts 1 and 2 of the information but granted the motion as to the third count on the ground 'that the verdict is not sustained by the proof.' The third count of the information charged that Marion F. Johnson on the 28th day of July, 1945, in Lee County, Florida 'did unlawfully and feloniously have in his possession lottery tickets commonly known as bolita tickets, which said lottery was for money and which lottery tickets represented an interest in a lottery scheme or device not yet played.' There was no evidence that the accused had in his possession lottery tickets at the time alleged in the information.

The judgment of the court was as follows:

'You having been tried by a jury and convicted of the crime of Conducting a Lottery, as charged in the first and second counts of the information on file herein, the court therefore adjudges you to be guilty of the crime of Conducting a Lottery, as charged in the first and second counts of the information on file herein, it is therefore the judgment of the court and the sentence of the law that you, Marion F. Johnson, for your said offense, do be confined by imprisonment at hard labor in the State Prison of the State of Florida, for a period or term of eighteen (18) months, on each of said counts, to run concurrently.'

Prior to trial defendant, through his counsel, filed motion to quash the information. A part of the motion to quash attacked the sufficiency of the information upon the following ground:

'1. Each count of the information is vague, indefinite and uncertain and does not sufficiently apprise the defendant of the nature and cause of the accusation against him to enable him to prepare his defense thereto or to protect him in case of an acquittal or conviction upon said count from again being put in jeopardy for the same offense.

'2. Each count of said information is duplicitious.

3. Each count of said information is multifarious.

'4. Each count of said information fails to charge any offense punishable by the laws of the State of Florida.

'5. The third count of said information does not show that the lottery tickets were tickets in a live lottery or a lottery yet to be played.

'6. The information purports to contain three counts, charging the defendant with three separate and distinct offenses and is entitled and endorsed 'Information for conducting lottery' and the oath of the State Attorney thereto sets forth that 'the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true and which if true would constitute the offense therein charged,' whereas three offenses are attempted to be charged in said information and the oath of the prosecuting officer does not show to which offense the said oath refers.',

and also challenged the validity of the information upon the grounds (a) that the information was based upon evidence procured under a purported search warrant issued upon an insufficient affidavit; (b) that the affidavit and search warrant were insufficient to justify the search of a dwelling house 'in that they do not allege that the said premises were in part used for some business purpose, such as a store, shop, saloon, restaurant, hotel or boarding or lodging house, or that same was being used for the unlawful sale, possession or manufacture of intoxicating liquors or that stolen or embezzled property was contained therein, as provided by Section 933.18, F.S.A.; wherefore the defendant charges that the said purported affidavit and purported search warrant were null and void and that the evidence obtained thereby was illegally obtained and in contravention of the constitutional rights of the defendant aforesaid, and that the evidence so used was used by the State of Florida, its officers and agents for the purpose of obtaining said information and that said information is based upon said evidence so illegally obtained; for which reason defendant avers that the said information is null, void and of no force and effect, and prays the judgment of this court thereon in like manner as if he had pleaded in abatement or in bar of said prosecution and that said information be quashed'; (c) that the evidence upon which said information was based was obtained by the unlawful execution of a search warrant in 'that officers and agents of the State of Florida in their efforts to serve said illegal warrant did break open the outer door of defendant's dwelling house, without giving due notice of their authority and purpose prior to their entry therein, as is required by Section 933.09, F.S.A., and that the said officers and agents of the State of Florida, in executing the said purported search warrant willfully exceeded their authority, contrary to Section 933.17, F.S.A.'; (d) because the information 'is based upon evidence obtained by virtue of a purported search warrant issued upon a purported affidavit of Wilford C. Mathis, a deputy sheriff, for the search of the dwelling house of the defendant, in which it is alleged: 'affiant says further that the aforesaid Marion F. Johnson uses said dwelling house in part for business purposes, to-wit: the maintenance of an office for the practice of medicine wherein he practices said profession and also the operation of the aforesaid gambling and lottery business'; defendant avers that said purported affidavit was insufficient as a basis upon which to issue the purported search warrant, in that it erroneously assumes that an office for the practice of medicine is such a use as set forth in Section 933.18, F.S.A.; and defendant further avers that the purported search warrant was not limited in its scope to the search of the said office of the defendant in said building and that the search and seizure conducted by virtue of said purported search warrant and the purported evidence obtained was outside the office of the defendant in his said dwelling house.'

The pertinent part of the affidavit upon which the search warrant issued is as follows:

'Before me, Hiram W. Bryant, the County Judge in and for the County of Lee and State of Florida, personally came Wilford C. Mathis, a deputy sheriff of Lee County, Florida, who being by me first duly sworn deposes and says that he believes and has good reason to believe that in the dwelling house of Marion F. Johnson, located at 1125 West Second Street, at the corner of West Second Street and Broadway, in the city of Fort Myers, Lee County, Florida, said premises also known as the office and residence of the said Marion F. Johnson, gambling and lottery for money are being conducted by the said Marion F. Johnson and persons whose names are to the affiant unknown, contrary to the laws of the State of Florida; and that the said premises are being used for the operation of a gambling room and the conducting of a lottery for money, contrary to the laws of this State; and that the affiant's reason for his belief is that he has within the past week, in the course of an investigation conducted by him as a deputy sheriff, seen a number of persons both white and colored purchasing shares or rights in a lottery for money not yet played in said building and that he has also seen, within the past week and in the aforesaid building, persons selling to other persons shares or rights in a lottery for money not yet played and that he had seen on said premises and he has learned from the aforesaid investigation that there are on said premises gambling implements, lottery implements, lottery tickets, lottery tally sheets and records containing the lottery numbers or shares purchased by customers together with the name or the initial of the customer purchasing said lottery number or share and that affiant has information from other persons that unlawful wagering, betting and a lottery for money is actually being conducted within the said building. Affiant says further that the aforesaid Marion F. Johnson used said dwelling in part for business purposes, to-wit: the maintenance of an office for the practice of medicine, wherein he practices said profession and also the operation of the aforesaid gambling and Lottery business.'

The pertinent part of the search warrant is as follows:

'Whereas Wilford C. Mathis, has this day made oath before me that he has probable cause to believe and does believe that in the dwelling house of Marion F. Johnson, located at 1125 West Second Street, at the corner of West Second Street and Broadway, in the City of Fort Myers, Lee County, Florida, said premises also known as the office and residence of the said Marion F. Johnson gambling and a lottery for money are being conducted by the said Marion F. Johnson and persons whose names are to the affiant unknown, contrary to the laws of the State of Florida: and that the said premises are being used for the operation of a gambling room and the conducting of a lottery for money, contrary to the laws of this State. These are, therefore, to command you, with proper and necessary assistance, in the daytime, in the dwelling house of the said Marion F. Johnson, located at 1125 West Second...