Mixon v. State

Decision Date28 August 1951
PartiesMIXON et al. v. STATE.
CourtFlorida Supreme Court

R. B. Crawford, Jr., Bartow, and D. C. Laird, Lakeland, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

HOBSON, Justice.

This is an appeal from the Criminal Court of Record for Hillsborough County. Appellants, George A. Mixon, James E. Hawkins, James C. McFarland, Bill Atwater and Solon Wear were convicted on two counts charging violation of the lottery statute, Section 849.09, Florida Statutes 1941, F.S.A.

The first count charged that the defendants '* * * did unlawfully conduct a lottery for money, and by means of a lottery did dispose of money, and did sell tickets in a certain lottery for money * * *.' The second count charged that the defendants '* * * did unlawfully and feloniously have in their possession certain tickets in a certain lottery * * * which tickets were evidence of an interest in the aforesaid lottery not yet played.'

The court below sentenced the appellants, Mixon and Hawkins to three years in the State penitentiary and appellants Wear, McFarland and Atwater to a term of two years. Passing of sentence on appellants on the second count was deferred by the court below from day to day and term to term.

Appellants first contend that the court below erred in denying their motion to suppress certain evidence obtained by the State and admitted at the trial over the appellants' objections. The contention that the items involved, i. e., envelopes containing duplicate tickets or memoranda of tickets sold and money for the sale thereof, bolita bags, balls, etc., and about which testimony was introduced, were obtained by an unreasonable search and seizure, in violation of Sections 12 and 22 of the Declaration of Rights of the Florida Constitution, F.S.A., is not tenable.

Though the officers admittedly possessed no search warrant, we find that there are several grounds which sustain our conclusion. First, it is well recognized that a reasonable search and seizure may be made incident to a lawful arrest. Italiano v. State, 141 Fla. 249, 193 So. 48; Occinto v. United States, 8 Cir., 54 F.2d 351; see Whitcombe v. United States, 3 Cir., 90 F.2d 290; Brown v. State, Fla., 46 So.2d 479. Section 901.15(1), Florida Statutes 1941, F.S.A., provides that a peace officer may arrest without a warrant 'When the person to be arrested has committed a felony or misdemeanor in his presence.' Subsec. (3) provides that a peace officer may arrest without a warrant 'When he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it.' It is clearly shown that the officers had a reasonable ground to believe that a felony was going to be committed on the premises, and the officers in fact witnessed the commission of the crime. The arrests were by lawful authority and the seizures incident thereto proper. See Italiano v. State, supra, and Occinto v. United States, supra.

Second, the cases are replete with references to protection against unreasonable search and seizure in connection with one's 'dwelling house.' See Robertson v. State, 94 Fla. 770, 114 So. 534; Gildrie v. State, 94 Fla. 134, 113 So. 704; Creech v. United States, 5 Cir., 97 F.2d 390. Though the sphere of protection has been extended to embrace business establishments, we find no case affording protection for those who are at most visitors in an empty and untenanted house. After several of the appellants at the time of their arrest admitted that none of them lived in or had any interest in the house, a witness for appellants testified at the hearing upon the motion to suppress the evidence that he had rented the house to appellant, Mixon, and had received payment for two months rent. The trial judge in overruling the motion and overruling appellants' objections at the trial necessarily found upon conflicting evidence that no such lease existed. His ruling on the admissibility of the evidence necessitated passing on the factual question of the existence of a lease, which function was entirely within his province. This Court will not reverse a finding of fact by the lower court unless error is patent on the record. To be afforded protection against an unreasonable search of premises and a seizure of property thereon, one must claim and prove himself to be the owner, occupant, or lessee of the premises searched. 47 Am.Jur. Searches and Seizures, Sec. 11, page 508, 56 C.J. Searches and Seizures, Sec. 54, page 1174. See Creech v. United States, supra, and Whitcombe v. United States, supra.

Appellants next contend that the evidence was insufficient to sustain the verdict on the first count of the information. We think the evidence clearly sufficient...

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42 cases
  • Edmond v. State
    • United States
    • Florida District Court of Appeals
    • June 27, 1973
    ...Wheeler v. State, Fla.1954, 72 So.2d 364; Williams v. State, Fla.1953, 69 So.2d 766; Young v. State, Fla.1953, 69 So.2d 761; Mixon v. State, Fla.1951, 54 So.2d 190; Washington v. State, 1906, 51 Fla. 137, 40 So. 765; Sparks v. State, Fla.App.4th 1972, 256 So.2d 537; Martin v. State, Fla.App......
  • Kluck v. State
    • United States
    • Wisconsin Supreme Court
    • December 22, 1967
    ...it was incumbent upon Ruiz to show he was the owner, lessee, or lawful occupant of the premises searched, as held in Mixon v. State, Fla.1951, 54 So.2d 190, 192; State v. Smith, Fla.App.1960, 118 So.2d 792; McCain v. State, Fla.App.1963, 151 So.2d 841; Robinson v. State, Fla.App.1967, 194 S......
  • Chacon v. State
    • United States
    • Florida Supreme Court
    • June 19, 1957
    ...of the search could be of no material assistance to Longval and McFadden. Church v. State, 151 Fla. 24, 9 So.2d 164; Mixon v. State, Fla.1951, 54 So.2d 190; 47 Am.Jur., Searches and Seizures, Sec. 11, p. We now return to the contention of appellant Chacon that the search warrant was invalid......
  • State v. Smith
    • United States
    • Florida District Court of Appeals
    • December 20, 1966
    ...the seizure. The ruling necessitated passing on a factual question, which was a function entirely within his province. Mixon v. State, Fla.1951, 54 So.2d 190, 192; Varrell v. State, Fla.App.1957, 98 So.2d Respondent waived trial by jury and was tried in the Criminal Court of Record for Dade......
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