Wheeler v. State
| Decision Date | 12 February 1954 |
| Citation | 72 So.2d 364 |
| Parties | WHEELER v. STATE. |
| Court | Florida Supreme Court |
Sam E. Murrell and Sam E. Murrell, Jr., Orlando, and Whitaker Brothers, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Mark R. Hawes, Asst. Atty. Gen., for appellee.
The appellant was found guilty by a jury on all five counts of an information containing charges of various violations of Section 849.09, Florida Statutes 1951, and F.S.A., denouncing participation in lotteries. Each count contained allegations setting out a different aspect of the same criminal transaction.
He first asserts that the judgment was invalid because the prosecuting officer was allowed too much latitude in the cross-examination of the appellant about his connection with the operation of lotteries in the month preceding the one named in the information which was January, 1952. The appellant sought and was granted a bill of particulars. It contained the rather general information that the lottery in which he was claimed to have been implicated was 'bolita' or 'Cuba' and that the tickets evidencing an interest were in the motorcar of the appellant and in his sole possession. The papers taken from the appellant by the officers were briefly described in the bill which bore the statement that 'every implement and device' and bit of evidence seized had been exhibited to the appellant and his attorney at the preliminary hearing.
We have found no representation in the bill of particulars which could have bound the state to a precise date in the cross-examination. To sustain the appellant in his position we would have to assume that because the seizure was made on the date stated in the information evidence of the appellant's transactions on that day and on no other was relevant.
Neither the nature of the crimes charged nor the bill of particulars furnished would justify our upsetting the judgment because the appellant was required to reply, especially as it could be deduced from his own testimony that he was engaged in the lottery business in both December and January, having procured wagering stamps and made reports to the United States Government for periods in those months. Although his categorical denials of participation in lotteries were always pointedly confined to the date fixed in the information, 12 January 1952, it is obvious that the State's evidence need not have been thus restricted for the exact time did not enter into 'the nature or legal existence of the offense.' Horton v. Mayo, 153 Fla. 611, 15 So.2d 327.
The appellant has argued strenuously that we should reverse the judgment because the trial judge charged the jury that it would be their duty to find the defendant guilty if they believed beyond a reasonable doubt that the defendant committed the offense charged on the date alleged in the information 'or at any time within two years prior to the date of the filing of the information which was on the 11th day of February, 1952 * * *.'
That charge was entirely proper. As early as 1889 in Chandler v. State, 25 Fla. 728, 6 So. 768, this Court decided the question contrary to appellant's position. In Alexander v. State, 40 Fla. 213, 23 So. 536, 537, this Court held: 'The authorities all agree, however, that while some date or time must generally be stated in the indictment upon which the offense was committed, yet such time need not be stated accurately, except in those cases where the allegation of the precise time is material; and the time alleged must be prior to the finding of the indictment, and within the period when the offense would be barred by limitation; and a different time may be shown at the trial; and it will be sufficient to sustain a conviction if such proof shows the offense to have been committed at any time prior to the indictment, and within the bar of the statute, except in the cases where the exact time enters into the nature of the offense.' See also Morgan v. State, 51 Fla. 76, 40 So. 828.
As late as 1943, in Horton v. Mayo, supra, from which we have already quoted, the precise principle was again recognized in an opinion written for the Court by Mr. Justice Brown in which every member of the Court concurred.
Nor can the appellant successfully argue that he was misled by any variance between the date in the bill of particulars furnished at his request and the date in the information, or between any day named in the bill of particulars and the dates mentioned in the testimony. This is true for the simple reason that he did not ask to be furnished the date on which the state expected to prove that an offense was committed and no such date, consequently, appeared in the bill of particulars.
The appellant complains that error was committed when the solicitor was allowed to read to the jury a letter that had not been offered in evidence. An examination of the pertinent parts of the record does not convince us that objection to the procedure was properly presented. The solicitor asked the defendant if he received a communication containing a certain statement and the attorney for the defendant objected on the ground that the question out on 'not in cross of anything brought out on direct.' The objection on which the trial judge ruled does not coincide with the one now made.
We have read the testimony in this case and have become convinced that the jury was justified in believing that the appellant was caught red-handed in lottery operations, so his position that the evidence did not support the verdict is not sustained.
Although the appellant was convicted of the offenses charged in all counts of the information the judge chose to adjudge him guilty of only one, possession of lottery tickets, which is defined as a misdemeanor. He ordered the defendant 'imprisoned by confinement at hard labor for one year in the State Penitentiary' to which there would be added a period of thirty days if the appellant failed to pay the costs. The judgment was not a proper basis for such a sentence because the penalty for the first offense of possessing lottery tickets is 'imprisonment in the county jail for not less than ninety days nor more than one year or by fine of not less than one hundred dollars nor more than five thousand dollars, or by both such fine and imprisonment.' Section 849.09, supra.
As we construe the testimony as it relates to the charges we are inclined to the view that the appellant though found guilty of five transgressions was actually guilty of one transaction five facets of which were reflected in the information. Having such a view we think the rule announced in Simmons v. State, 151 Fla. 778, 10 So.2d 436, should be invoked.
Inasmuch as the appeal here was taken from both the judgment and sentence we have studied both, and we have found, as we have written, that the sentence did not conform to the judgment. But we conclude that it is the judgment which should first be corrected by recognizing and adjudicating the appellant guilty of the highest offense charged. Once this is done the judge should pronounce the sentence that such an adjudication warrants.
The judgment and sentence are reversed with directions to proceed with the cause on the verdict the jury rendered.
Reversed for proper judgment and sentence.
I must dissent from that portion of the opinion which holds that the charge of the lower court that it would be their duty to find the defendant guilty if they believed beyond a reasonable doubt that the defendant committed the offense charged on the date alleged in the information 'or at any time within two years prior to the date of the filing of the information which was on the 11th day of February, 1952, * * *', was proper, because, as I construe the charge, the court did not actually so instruct the jury. I do agree that in the ordinary criminal case there would be nothing improper about the charge as actually given but I am convinced that, as this case unfolded to the jury, the charge was tantamount to directing the jury to find the defendant guilty of the offense he was being tried on.
The information, as set forth in the opinion of Mr. Justice THOMAS, charges that the offense on which Wheeler was being tried was committed on January 12, 1952. When the defendant took the stand in his own behalf, the following was developed on cross-examination:
'Q. You say you are not in the Bolita business? A. I said I was not in the Bolita business on the 12th day of January.
'Q. Were you in December 51?
'Mr. Murrell: That is objected to as irrelevant and immaterial, and not in cross of anything brought out on direct examination.
'Q. Were you interested in or connected with lottery or anything of value known as Cuba or Bolita during the month of December '51?
'Mr. Murrell: I object. There is a specific date, and specific incident alleged in this information, and I think that is what the defendant is being tried for--that is the allegation, and the bill of particulars shows that. Any other dates and circumstances except those alleged in the information and bill of particulars is not admissible. Certainly, they would be irrelevant and immaterial and highly prejudicial because I think the State is limited to the time and incident set forth in the information and bill of particulars furnished to the defendant. (Argument of counsel.)
'Judge: Objection overruled.
'Q. The question was, were you interested in or connected with a lottery known as Bolita or Cuba during the month of December, 1951? A. I don't have to answer--that might tend to incriminate me, do I ?
'Q. That's all right. A. May I ask for a ruling of the Court?
'Q. You refuse to answer * * *? A. If you are leading up to the stamp--I bought a Federal stamp.
'Q. Just answer or refuse to answer.
'Mr. Ellars: I want him to answer the question was h...
To continue reading
Request your trial
-
Edmond v. State
...single transaction see Cone v. State, Fla., Case No. 42,760, filed March 9, 1973; Norwood v. State, Fla.1956, 86 So.2d 427; Wheeler v. State, Fla.1954, 72 So.2d 364; Williams v. State, Fla.1953, 69 So.2d 766; Young v. State, Fla.1953, 69 So.2d 761; Mixon v. State, Fla.1951, 54 So.2d 190; Wa......
-
Orange v. State, 75--1175
...to be facets of one transaction. See Mixon v. State, Fla.1951, 54 So.2d 190; Williams v. State, Fla.1953, 69 So.2d 766; Wheeler v. State, Fla.1954, 72 So.2d 364; Norwood v. State, Fla.1956, 86 So.2d 427; Tribue v. State, Fla.App.1958, 106 So.2d 630; Sharon v. State, Fla.App.1963, 156 So.2d ......
-
Perlman v. State, 71-824
...at least where time is not an essential element of the crime. See Horton v. Mayo, 1943, 153 Fla. 611, 15 So.2d 327, 328, and Wheeler v State, Fla.1957, 72 So.2d 364. In the latter, the court '. . . 'The authorities all agree, how ever, that while some date or time must generally be stated i......
-
Johnson v. State
...of previous chaste character, were different aspects of the same transaction.The language of different "facets" is found in Wheeler v. State, 72 So.2d 364 (Fla.1954), which held that five counts of violating the lottery statute reflected five facets of one transaction. See also Norwood v. S......