Vanderhorst v. State
| Decision Date | 23 October 1942 |
| Citation | 10 So.2d 138,151 Fla. 620 |
| Parties | VANDERHORST v. STATE |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 16, 1942.
Appeal from Criminal Court of Record, Hillsborough County; John R. Himes, Judge.
Sam Bucklew, of Tampa, for appellant.
J. Tom Watson, Atty. Gen., Millard B. Conklin and Woodrow M. Melvin Asst. Attys. Gen., and H. Tolbert Black, Sp. Asst. Atty Gen., for appellee.
Appellant went to trial on an information in two counts. The first charged the maintaining of a gambling room for the purpose of gambling. The second count charged the defendant of having control and management of a gambling room and suffering others to gamble therein. The information was based on Section 7657, C.G.L, now Section 849.01, Florida Statutes 1941. There was an acquittal on the first and a conviction on the second. The pertinent part of the statute under which the conviction was had provides:
'Whoever * * * in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever * * *.'
Thus it will be seen that the State alleged more than was necessary in the second count when charging the room maintained was a 'gambling' room. Having alleged such fact, then is the State required to prove same or can it be treated as surplusage? The Criminal Procedure Act of Florida, Acts 1939, c. 19554, provides in Section 124:
Section 309 of the Criminal Procedure Act of Florida provides:
The information was sufficiently definite and certain to meet all constitutional requirements. The error pointed out was in appellant's favor in that the court charged the jury that under the second count it was incumbent on the State to prove that defendant had charge of a gambling room and suffered others to gamble therein. The evidence is convincing to us, as it evidently was to the jury, that appellant caused his tables to be delivered to the room the night before; that he secured a man who had worked for him before to deal the cards and operate the game; that he delivered a cut box or 'kitty' to his dealer; that he retained a key to the cut box; that he instructed his dealer to enlist another negro to coax the people to the place for gambling. The State is not required to prove the personal presence of the accused in the room in order to prove control of the room, or that the accused had the exclusive control of same.
Appellant also contends that his acquittal under the first count is a bar to a conviction under the second as here charged. We find this without merit also. The statute under which this prosecution was had is in the disjunctive and denounces two separate crimes.
We have carefully studied the briefs filed and have likewise read the testimony and have given due consideration to the sentence imposed. From the record as a whole, we find no reversible error.
The judgment is affirmed.
THOMAS, J., agrees to conclusion.
I find myself unable to concur in the opinion prepared by Mr. Justice ADAMS in this case because that opinion holds that language which I consider a material allegation of the information is surplusage and may be eliminated. The information upon which the appellant was tried was in two counts. The First Count charged that,
'Charlie Vanderhorst, Alias Charlie Moon late of the County of Hillsborough aforesaid, in the State aforesaid, on the 27th day of November in the year of Our Lord one thousand nine hundred and forty-one with force and arms at and in the County of Hillsborough aforesaid did unlawfully and feloniously have, keep, exercise and maintain a gambling room in a building located at 1006 1/2 Central Avenue, Tampa Florida, a further description and more exact location of which is to the Solicitor unknown, for the purpose of gaming and gambling, for money and other things of value, against the form of the statute in such case made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the State of Florida:'.
The Second Count charged that,
'Charlie Vanderhorst, alias Charlie Moon, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 27th day of November, A.D. 1941, with force and arms at and in the County of Hillsborough aforesaid, having charge, control and management of a certain gambling room located in a building located at 1006 1/2 Central Avenue, Tampa, Florida, a further description and more exact location of which is to the Solicitor unknown, did then and there unlawfully and feloniously suffer and permit divers persons the names of such persons being to the Solicitor unknown,...
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Perlman v. State, 71-824
...is permitting gambling in a place under one's control. The disjunctive nature of this statute was recognized in Vanderhorst v. State, 1942, 151 Fla. 620, 10 So.2d 138, 140, and Toll v. State, 1898, 40 Fla. 169, 23 So. 942. The informations in the present case are sufficient only to charge e......
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Ferguson v. State
...or keeping a gambling room or house and for procuring or permitting another to gamble at a place under his control. Vanderhorst v. State, 151 Fla. 620, 10 So.2d 138 (1942); Toll v. State, supra. The cases cited above and other reported cases dealing with what is now section 849.01, Florida ......
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State v. Tabasko
...responsible for the house, who left orders concerning things to be done and who made room assignments in the house. In Vanderhorst v. State, 151 Fla. 620, 10 So.2d 138, which involved a prosecution for permitting gambling in a place of which the accused had charge, control or management, th......
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State v. Ferguson, 77-973
...So.2d 84 (Fla. 4th DCA 1973), such proof does not seem to be required for a conviction under the second part. See Vanderhorst v. State, 151 Fla. 620, 10 So.2d 138 (1942) where dicta of the majority opinion seems to us to strongly direct such a conclusion. In addition, we are a bit hard pres......