Solomon v. State
| Decision Date | 27 February 1934 |
| Citation | 115 Fla. 310,156 So. 401 |
| Parties | SOLOMON et al. v. STATE. |
| Court | Florida Supreme Court |
On Rehearing June 7, 1934.
Error to Criminal Court of Record, Dade County; E. C. Collins Judge.
Jake Solomon and Harry Leeds, alias Dave Byers, were convicted of maintaining and operating a gambling room and of keeping and maintaining certain gaming implements and apparatus for the purpose of gaming and gambling, and Ben Mack was convicted only of the latter offense, and they bring error.
Reversed.
COUNSEL Bart A. Riley and J. Aaron Abbott, both of Miami, for plaintiffs in error.
Cary D Landis, Atty. Gen., and Roy Campbell and Robert J. Pleus Asst. Attys. Gen., for the State.
Loftin Stokes & Calkins, of Miami, amici curiae.
This case is before us on writ of error to judgment of conviction against the plaintiffs in error under an information in two counts. The first count charged them with the offense of maintaining and operating a gambling room. The second count charged them with the offense of keeping and maintaining certain gaming implements and apparatus for the purpose of gaming and gambling. All except Ben Mack were convicted under both counts, and Ben Mack was convicted under the second count only.
On the trial it was shown that a deputy sheriff and a police officer broke and entered into a room where plaintiffs in error and other persons were congregated. In this room there were five telephones, some horse race charts, scratch sheets, betting sheets, and tickets. The officers were unable to testify that any gambling was being conducted in the room or with the implements and apparatus at the time they with force and violence entered the room.
The chief attack in this case is centered upon the validity of section 5506, Rev. Gen. St., section 7664, Comp. Gen. Laws, but the record in the case is such that we are not required to pass upon the question as to whether or not this section of the statute is valid or invalid.
The evidence upon which the state relied for conviction was entirely circumstantial, and therefore the rule applicable is that the evidence as a whole must be so strong, cogent, and convincing as to exclude every reasonable hypothesis except the guilt of the accused.
The evidence is that the deputy sheriff and police officer heard the telephones clicking and ringing and that they heard some conversations over the telephones, but they did not know what those conversations were about, nor did they know who was doing the talking at the other end of the line. The evidence was sufficient to create a very substantial suspicion that the plaintiffs in error were operating some sort of gambling enterprise in the room, but the rule is well settled that one charged with a criminal offense cannot be convicted on guesswork and suspicion.
The implements and apparatus described in the information were seized by the officers at the time they entered the room without being armed with a search warrant. Inasmuch as the officers were unable to say that any crime was being committed when they entered the room, there can be no question that the seizure was in violation of section 22 of the Declaration of Rights of the state of Florida and the Fourth Amendment of the Constitution of the United States.
The evidence shows that the paraphernalia offered in evidence was unlawfully seized, and therefore its being admitted in evidence was error.
If, however, the paraphernalia and evidence in connection therewith had all been legally obtained and properly admitted, there was still not sufficient evidence either to show that the room was maintained or operated by either of the plaintiffs in error as a gambling room or that the implements and apparatus were kept or maintained by either of the plaintiffs in error for the purpose of gaming or gambling.
For the reasons stated, the judgment should be reversed, and it is so ordered.
Reversed.
Section 7664, Comp. Gen. Laws, section 5506, Rev. Gen. St., reads as follows: 'If any sheriff, city marshal or chief of police has good reason to believe that gambling is beign carried on in any house or other place, he may enter the same forcibly, if necessary, and without written warrant, and may arrest any person violating the provisions of this Article.'
My view is that the above-quoted statute must be strictly construed, indeed, as strictly construed as this court has construed section 7177, Comp. Gen. Laws, section 5075, Rev. Gen. St., wherein this court was called upon to construe a statute that vested certain extraordinary powers in a sheriff, deputy sheriff, constable, justice of the peace, mayor, or alderman to go among persons unlawfully assembled and command them to disperse, in violation of which command a presumptive criminal responsibility would attach for disobeying the officer's orders. In Lezama v. State (Fla.) 148 So. 304, this court construed the statute strictly and held that, since lieutenant of police was not named in the statute, no criminal liability would attach for mere failure to heed an admonition given by him, which, if it had been given by one of the named officers, would have fixed such criminal liability.
Section 7664, Comp. Gen. Laws, section 5506, Rev. Gen. St., names only the sheriff, city marshal, or chief of police as being vested with the extraordinary authority of law to forcibly enter, without warrant, a house or other place wherein they have good reason to believe gambling is being carried on. The situation involved in the recent decision of this court in Swenson v. Cahoon (Fla.) 152 So. 203 (opinion filed September 12, 1933), affords a good illustration why the statute may have contemplated the personal presence of the sheriff, marshal, or chief of police himself as the only justification for exercising authority to break and enter a gambling house without warrant. In the Swenson Case it was held that the act of a deputy sheriff in usurping the power to make an unlawful arrest without warrant did not per se render the sheriff himself liable on his official bond.
I have little doubt that the language of section 7664, Comp. Gen. Laws, supra, was used advisedly and was intended to require the sheriff himself to be present and to personally supervise the execution of the unusual and highly extraordinary powers conferred upon the particularly named officers who are vested by section 7664, Comp. Gen. Laws, supra, with power to enter not only place of business, but 'any house' wherever there is merely 'good reason to believe' that gambling is being carried on.
In my judgment the statute vests in the sheriff, marshal, or chief of police in person the powers thereby conferred. It does not vest such power, nor the judgment and discretion necessarily involved, in any deputy sheriff, policeman, or other officer not so named. While there is no doubt as to the lawful right of deputies and other officers to be present at the request or direction of the sheriff if such sheriff be present as the responsible officer, undertaking to carry out a gambling house raid, when the sheriff himself decides to make one under section 7664, Comp. Gen. Laws, supra, the power thus exercised by the sheriff, is a delegated one of highly oppressive character, and is within the scope of the maxim 'delegata potestas non potest delegari.' In my opinion, the legal maxim just cited applies to any attempt of a deputy sheriff to exercise the power given by section 7664, Comp. Gen. Laws, only to the sheriff. Such was the case here. See Lezama v. State, supra.
I therefore concur in reversal, but solely on the ground that I think the raid, having been made in the absence of the sheriff, by his deputies, cannot afford a legal predicate for the use in evidence of the incriminating articles and gambling paraphernalia seized under section 7664, Comp. Gen. Laws; herece the conviction based largely on such illegally obtained evidence is itself illegal.
On Rehearing.
This case is before us on rehearing granted after opinions and judgment filed and entered herein on February 27, 1934, and after considering additional briefs filed and hearing and considering argument of counsel presented pursuant to the granting of rehearing
It is considered by the court that the said opinions and judgment filed and entered in this cause on February 27, 1934, should now be adhered to and that the judgment to which writ of error was directed do stand reversed.
It is so ordered.
Judgment of reversal adhered to on rehearing.
Section 7664, Comp. Gen. Laws,...
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