State v. Chapman, 69--980

• Decision Date: 27 October 1970
• Docket Number: No. 69--980,69--980
• Citation: 240 So.2d 491
• Parties: STATE of Florida, Appellant, v. Fred CHAPMAN et al., Appellees.
• Court: Florida District Court of Appeals

Page 491

240 So.2d 491

STATE of Florida, Appellant, v. Fred CHAPMAN et al., Appellees.

No. 69--980.

District Court of Appeal of Florida, Third District.

Oct. 27, 1970.

Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., Richard E. Gerstein, State's Atty., and Charles D. Edelstein, Asst. State's Atty., for appellant.

Walter E. Gwinn, Miami, for appellees.

Before PEARSON, C.J., and HENDRY, and SWANN, JJ.

SWANN, Judge.

The State of Florida appeals from a final order, as amended, which dismissed Counts One, Two and Five of a five count information and which granted immunity to one of the defendants, Fred Chapman.

These defendants were originally indicted by the Spring Term 1967 Dade County Grand Jury and charged in separate counts with violations of the lottery and gambling laws of Florida. This information was dismissed and an amended information was filed March 25, 1968. The final information filed on January 20, 1969 charged the defendants with violating the lottery and gambling laws of Florida in five separate counts.

In pertinent part, Counts One and Two of the amended information charged the defendants with certain violations of state laws 'beginning On or about the 8th day of March, 1967, through and continuing to and ending on the 26th day of September, 1967.'

Rule 1.140(d)(3), CrPR, 33 F.S.A., provides that each count of an information 'shall contain allegations stating as definitely as possible the time' of the commission of the offense charged in the count.

In Morgan v. State, 51 Fla. 76, 40 So. 828 (1906), the Supreme Court held a charge that an offense was committed on or about a certain date was indefinite and uncertain and was fatal upon a motion in arrest of judgment. We find no error in the ruling of the trial judge concerning Counts One and Two of the information. See also 17 Fla.Jur. Indictments and Informations § 40. The appellees advance other persuasive grounds to uphold the ruling of the trial court in dismissing Counts One and Two but we see no need to discuss additional reasons for affirming the ruling of the trial judge in this regard.

The state, in response to a request for a statement of particulars for the exact date on which the alleged offenses were committed, first answered that the date was 'unknown' and later answered 'as stated in the information.' The trial court, in its final order, as amended, found 'that the State by their Bill of Particulars cannot state with sufficient certainty the dates and times of the offenses alleged in Counts I and II of the Information and that such would embarrass the Defendants in the preparation of their defense.'

We hold the state has failed to show an abuse of discretion in the action of the trial judge in denying its motion to amend the information by striking the words 'on or about' from Counts One and Two.

In Count Five, one of the defendants, Elsie Griffin, was charged with unlawful possession of certain gambling devices, implements, apparatus or paraphernalia, ordinarily or commonly used in the operating of gambling houses or establishments, towit: Lottery Slips with Notations, Rundown Sheets with Notations, Transmittal Envelopes and Cash in the sum of One Hundred-Ninety-One Dollars and Sixty-Five Cents ($191.65), in violation of § 849.09(1)(f), Florida Statutes, F.S.A.

The final order, as amended, agreed that lottery slips with notations, transmittal envelopes and cash were not implements or devices for conducting a lottery, relying upon Cooper v. City of Miami, 160 Fla. 656, 36 So.2d 195 (1948) and Zeiders v. City of Ft. Lauderdale, Fla.App.1962, 136 So.2d 261.

Section 849.09(1)(f), Fla.Stat., F.S.A. provides:

'(1) It shall be unlawful for any person in this state to:

'(f) Have in his 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;'

In Cooper, supra, the defendant was charged, tried and convicted of violation of Section Two of the Miami City Code by unlawfully setting up and keeping a gambling device * * *, 'to-wit: betting on horse races was then and there played for money.' (Emphasis added)

The evidence adduced therein was that the defendant was observed "taking bets and also paying off on winners' on certain horse races being run; that on the occasion of the arrest he saw the petitioner receive money for a bet and hand the better a bet slip upon which was written the amount of the bet that had been made, the initials of the petitioner, and the horse upon which the bet had been placed.'

The Supreme Court stated at page 196 of 36 So.2d:

'The manifest purpose and intent of a statute or ordinance forbidding the setting up and keeping of a gambling device at which games of chance are played for money is to prohibit not the gaming or gambling itself but the maintenance and operation of a device upon or by means of which gaming or gambling is permitted.'

and rationalized at page 196 that:

'It is plain from the evidence that the prosecution did not prove the charge lodged against the petitioner but proved, at most, an entirely different offense punishable by an entirely different ordinance, namely, gaming or gambling by taking bets upon a horse race without the intervention of a gaming or gambling device of any kind.'

We hold that Cooper, supra, is not sufficient authority for a holding that lottery sheets and rundown sheets with notations and transmittal envelopes and cash may not be considered to be at least an implement for conducting a lottery.

In Zeiders, supra, the defendant was charged, convicted and tried with violation of an ordinance of Ft. Lauderdale which made it unlawful for a person to have possession of any machine, device, paraphernalia, equipment or things commonly used in gambling. The opinion held that evidence of alleged bookkeeping records of bookmaking transactions was insufficient to sustain a conviction for violation of the ordinance.

Both Cooper and Zeiders turned on the insufficiency of the evidence to support a conviction of a specific charge for violation of city ordinances. In the case at bar the ruling was that the possession by the defendant, Elsie Criffin, of lottery slips and rundown slips with notations, transmittal envelopes and cash in the sum of $191.65 could not constitute a violation of § 849.09(1)(f), Fla.Stat., F.S.A., as a matter of law.

As indicated above, we do not believe Cooper and Zeiders are sufficient authority for such a ruling as a matter of law. There is no showing that these items were ever before the trial judge and they are not...