Victor v. State

Citation141 Fla. 508,193 So. 762
PartiesVICTOR v. STATE.
Decision Date01 August 1939
CourtFlorida Supreme Court

On Rehearing February 16, 1940.

Error to Criminal Court of Record, Hillsborough County; John R Himes, Judge.

Harry Victor was convicted of an offense, and he brings error.

Affirmed.

On Rehearing.

COUNSEL John R. Parkhill and Cyrus W. Fields, both of Tamps, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.

OPINION

BROWN Justice.

We cannot concur in the contention that the motion for directed verdict should have been granted. It has long been the law of this State that if reasonable men may differ as to the existence of facts tending reasonably to prove an ultimate fact, or as to inferences to be drawn from conceded facts the case should be submitted to the jury. There was sufficient evidence adduced here to submit the case to the jury and in our opinion no error was committed by the trial judge in refusing to direct a verdict.

While it is true that most of the evidence adduced was circumstantial, this court has repeatedly held that when such evidence is of a conclusive nature and tendency, and is consistent with guilt and inconsistent with innocence, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged, such evidence will sustain a conviction. Hall v. State, 90 Fla. 719, 107 So. 246; Cannon v. State, 91 Fla. 214, 107 So. 360; Lee v. State, 96 Fla. 59, 117 So. 699; Whiting v. State, 97 Fla. 693, 122 So. 2; Parish v. State, 98 Fla. 877, 124 So. 444; Simmons v. State, 99 Fla. 1216, 128 So. 486. And a party moving for a directed verdict admits facts in evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.1917E 715; Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Gunn v. City of Jacksonville, 67 Fla. 40, 64 So. 435.

The evidence strongly tended to show that the tickets represented a live interest in a lottery not yet played known as 'New York Bond,' as shown by their date, when considered in connection with the testimony of the witnesses Pent and Ross as to how the lottery known as 'New York Bond' is played and the lucky number is determined and the pay-off made. See pages 10 to 13, and 16 to 22, of transcript. The testimony of these two witnesses on cross examination that they could not testify of their own knowledge that these particular tickets could have been collected on does not destroy the effect of their testimony as to how the lottery was played.

We think the trial court was correct in submitting the case to the jury, and the judgment is accordingly affirmed.

WHITFIELD, P.J., and CHAPMAN, J., concur.

BUFORD, J., concurs in opinion and judgment.

TERRELL and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.

On Rehearing.

PER CURIAM.

Harry Victor was convicted in the Criminal Court of Record in Hillsborough County of having in his possession certain lottery tickets, representing an interest in a lottery not yet played. It appears that two deputy sheriffs entered a building at 412 Tampa Street, walked through to the back and there saw defendant sitting at a table or desk with the tickets in front of him. He was arrested, the tickets were taken by the deputies, and on the testimony of these two and a third officer, was convicted and sentenced to pay a fine of $750, or serve six months in the county jail. The original opinion of this court affirmed the conviction, but on motion of defendant, rehearing was granted.

The defendant contends that the tickets should not have been admitted into evidence because they were secured through an unlawful search and seizure. The place where the defendant was arrested and the tickets taken appears to have been a public place in front, with a desk or table in the rear, at which defendant was seated when the officers made the arrest. Defendant, in his brief, contends that there was some obstruction over, around or through which the officers had to pass in order to get to that part of the building in which defendant was seated. The nature of the obstruction does not appear however, and the two officers each testified that they had to go through no doors, nor over or around any obstruction. The officers had no search warrant but went into the building merely to see if they could observe any form of gambling going on. In view of the circumstances, we can but hold that there was no unreasonable search or seizure, and that the tickets were properly admitted into evidence. In Thurman v. State, 116 Fla. 426, 156 So. 484, the officer entered a private closed room without a warrant.

Defendant also contends that by reason of the fact that no consideration was shown to have been paid for the tickets he could not be convicted to having lottery tickets in his possession, under sec. 7667 (5509), C.G.L. In support of this contention, defendant makes this statement: 'It is well settled in Florida, as in other states, that in order for there to be a lottery three elements must be present; prize, chance and consideration.' We are unable to find wherein this court has ever said or implied that proof of consideration for an individual lottery ticket was necessary for conviction under sec. 7667 (5509), C.G.L. We do find this statement, however:

'In many jurisdictions with constitutional and statutory provisions inhibiting lotteries, the statutes have attempted to define them, and often such definitions are all-inclusive, embracing many species of gambling. Our constitutional provision suppressing lotteries does not attempt to define them, but, in view of the prevailing conditions as supported by contemporaneous and subsequent history, we must conclude that the people of this state had in mind such a lottery as was referred to in Phalen v. Virginia, supra [8 How. 163, 12 L.Ed. 1030].' Quoted from Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 489, 101 A.L.R. 1115.

In Phalen v. Virginia, 8 How. 163, 168, 12 L.Ed. 1030, as quoted in Lee v. City of Miami, supra, the Supreme Court of the United States has said:

'Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.'

It is true that there are certain conditions which must be present before conviction under sec. 7667 (5509), C.G.L., will be sustained, such as an interest in a lottery yet to be played, the disbursing of gifts or of money to the winners, and the passing of a consideration to the operator of the lottery, but there is nothing that we can find which requires as a condition precedent to the conviction of the possessor of a lottery ticket that he has paid or been paid something in consideration thereof.

In Little River Theatre Corporation et al. v. State ex rel Hodge, 135 Fla. 854, 185 So. 855, this court was asked to determine if what was commonly known as 'Bank Night' held in the various theaters was a lottery. Under the facts of that case, the public was invited to register in a book kept for that purpose in the...

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26 cases
  • Jones v. State
    • United States
    • Florida District Court of Appeals
    • February 26, 1985
    ...148 Fla. 540, 4 So.2d 691 (1941) (state's evidence deemed sufficient to sustain a second degree murder conviction); Victor v. State, 141 Fla. 508, 193 So. 762 (1939) (state's evidence deemed sufficient to establish that the defendant was in possession of "live" lottery tickets; conviction f......
  • Diecidue v. State, 30913
    • United States
    • Florida Supreme Court
    • May 24, 1961
    ...motion for directed verdict of acquittal. In its opinion the District Court on this issue quoted from the cases of Victor v. State, 1939, 141 Fla. 508, 193 So. 762 and Harrison v. State, Fla.App.1958, 104 So.2d 391. Appellant does not contend that the rule of law stated in the portions of t......
  • Greater Loretta Imp. Ass'n v. State ex rel. Boone
    • United States
    • Florida Supreme Court
    • April 22, 1970
    ...not be construed to license the operation of a machine in which the element of chance largely predominates.' And in Victor v. State, 141 Fla. 508, 193 So. 762 (1940), this Court said in reference to a lottery prohibited by a certain statute that: 'If is a lottery within the constitutional T......
  • Andreasen v. State
    • United States
    • Florida District Court of Appeals
    • June 14, 1983
    ...admits facts in evidence adduced and every conclusion favorable to the state fairly and reasonably inferable therefrom. Victor v. State, 141 Fla. 508, 193 So. 762 (1939); Weldon v. State, 287 So.2d 133 (Fla. 3d DCA 1973), appeal dismissed, 298 So.2d 419 (Fla.1974); Dancy v. State, 284 So.2d......
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