Pinder v. State
| Citation | 53 So.2d 639 |
| Parties | PINDER v. STATE. |
| Decision Date | 20 July 1951 |
| Court | Florida Supreme Court |
Roberts, Holland & Strickland, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
The appellant, Edmund Pinder, was convicted in the Criminal Court of Record of Dade County, Florida, and sentenced to pay a fine of $750 and costs, or be imprisoned at hard labor in the State Prison for a period of six months, for unlawfully having in his possession lottery tickets on December 23, 1950, or evidence of a share or right in a lottery yet to be played for money or other thing of value, as prohibited by Statute. Pinder perfected therefrom an appeal to this Court.
It is here contended that the evidence adduced at the trial on the part of the prosecution failed to establish or show that the tickets possessed by the appellant on December 23, 1950, in Dade County, Florida, 'were evidence of interest in a lottery scheme not yet played.' Appearing in the record is a lottery ticket adduced by the State of Florida during the progress of the trial, but the written notations thereon are insufficient to show that the ticket represented 'an interest in a lottery yet to be played', as prohibited by Section 849.09, F.S.A.
Deputies Sheriff O'Donnell and Sam Perry testified for the State. They arrested Pinder on December 23, 1950, at Pinder's Fish Market located at 447 Northwest 14th Street. Pinder, at the time, was in the rear of the market at a table and on the table before him were lottery tickets and $28.40 in cash. There were six lottery books and one C. A. Pinder slip and a $2.00 slip. The officers were unable to testify that the tickets then on the table with the cash in the rear of the fish market were live tickets, as prescribed by statute and the rulings of this Court. See D'Alessandro v. State, 114 Fla. 70, 153 So. 95, 96, and similar cases.
On cross examination officer O'Donnell was asked the following question (Tr. 13): By Mr. Roberts: 'You would not swear under oath that that was for a future drawing rather than a past drawing, would you Mr. O' Donnell? A. No, I wouldn't say under oath it was a live one. I didn't actually know it was a live one, other than it was with the cash.' Officer Perry's testimony was about the same as that given by O'Donnell. The writer, reluctantly, is forced to the conclusion that the judgment must be reversed because of the insufficiency of the evidence.
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