Wooten v. State

• Decision Date: 08 October 1888
• Citation: 24 Fla. 335,5 So. 39
• Parties: WOOTEN v. STATE.
• Court: Florida Supreme Court

5 So. 39

24 Fla. 335

WOOTEN v. STATE.

Florida Supreme Court

October 8, 1888

Error to criminal court of record, Duval county; LOTON M. JONES Judge.

The offense with which the plaintiff in error is charged is keeping a room for the purpose of gambling.

Syllabus by the Court

SYLLABUS

The fourth section of 'An act to suppress gambling-houses and gambling,' approved June 7, 1887, which provides 'that if any of the implements, devices, or apparatus commonly used in games of chance usually played in gambling-houses, or by gamblers, are found in any house room, booth, shelter, or other place, it shall be prima facie evidence that the said house, room, or place where the same are found is kept for the purpose of gambling,' is not unconstitutional.

The constitutionality of the above section is not impaired by other sections of the same statute, (assuming the latter to be unconstitutional,) making it the duty of the sheriff or other police officer to seize the implements, and have them publicly destroyed in the street, in the presence of witnesses, and authorizing any sheriff, city marshal, or chief of police to enter, forcibly if necessary, and without written warrant, any house or other place in which he may have good reason to believe that gambling is being carried on, and arrest any persons violating the act. The former provision or section is entirely independent of the latter sections, and it cannot be held that the legislature would not have adopted the former without the latter.

Where certain provisions of a statute are in nowise practically involved in the case under consideration, their constitutionality will not be passed on.

The effect of section 4 of the statute, as set out above, is to authorize the jury to infer from the proof of the finding of such implements, devices, or apparatus that the room they were found in was kept for the purpose of gambling, where there is nothing in the attendant circumstance, or in any of the evidence in the case, raising in their minds a reasonable doubt to the contrary.

The section in question does not give to proof of such finding the further effect of prima facie proof of the actual use of the instruments as another and independent evidence that the house, room, or other place is kept for the purpose of gambling.

If there is nothing in the testimony of the state or of the defense to control the presumption which the statutes authorizes to be drawn by the jury from the proof of the fact of the finding, they may infer from the proof of such fact that the room or house was kept for the purpose of gambling but, if there is any evidence whatever bearing upon the point of whether or not the implements were actually used for the purpose of gambling, the jury are to consider it, and give to it such weight as in their judgment it is naturally entitled to.

The purposes of the first section of the statute, in so far as it applies to having, keeping, exercising, or maintaining a gaming-room, or a house or other place for the purpose of gaming or gambling, is to punish the person whose establishment or enterprise or business the gambling-house is, whether he operate or manage it in person or 'by himself,' or do so by a servant, clerk, agent, or in any other manner; and the object of the second section is to punish any one acting as the servant, clerk, agent, or employe of the former person in carrying on, or operating or managing, the house or other place for the purpose of gambling.

In a prosecution under the first section, the jury must be satisfied beyond a reasonable doubt that the defendant is the person whose establishment or business the gambling-room is but proof (should there be such) that there was an arrangement between the defendant and his agent, managing the business for him, by which, as one of the terms of his employment, the latter was to regulate or control the operation of the business in the room, and to use his own judgment as to preventing persons from playing, would not of itself defeat a conviction; and it was consequently not error to refuse to charge the jury that they must be satisfied 'beyond a reasonable doubt that the defendant had the control or arrangement of the room; that is, he could regulate and control what was done there, and could have prevented the person or persons from playing, if he had seen fit to do so.'

Where an instruction embodying both a correct and an incorrect proposition of law is requested, it is not error to refuse to give it.

It is not error to refuse to give an instruction to the jury when the substance of it is contained in a charge already given them.

It is not error to refuse to charge a jury that the legal presumption of innocence is to be regarded by the jury as a matter of evidence, where they have been charged that the law presumes every man innocent until he is proven guilty by proper legal evidence, and, if they have any reasonable doubt as to the guilt of the defendant arising from the evidence, they should acquit him.

Where the testimony is clearly sufficient to sustain the verdict, and it is evident that no injury could have been sustained by an error in an instruction given to the jury, the verdict will not be disturbed.

COUNSEL

Hartridge & Young, for plaintiff in error.

The Attorney General, for the State. The only testimony is that introduced by the state. It is as follows:

Ed. Williams testified that on Friday, March 2, 1888, between 10 and 11 o'clock P. M., he invaded certain premises on Newnan street, in Jacksonville, Duval county, Fla. That he was instructed by the sheriff to take some men and raid what had been reported to him as a gambling-house, known as the 'Atlantic Garden,' situated on said street. That he went, accompanied by three others, and sent two men through the saloon, to come up the back way, while witness and another person took the front entrance. That in the mean time, as witness sent the two men through the bar-room, the party ran right in behind witness, and by the time witness got to the top of the stairs there was a commotion; in fact, witness thought the roof was coming down, 'and they proceeded to come down the stairs.' Witness stopped them, and went up into the room, and found some people,--probably 25 or so. Saw three tables in the room, chips upon the table, packs of cards upon one of the tables, and evidence of a game having been carried on. One party was sitting at the table, and the balance was stirred around the room. The room is on Newnan street, between Bay and Forsythe streets, and over what is known as the 'Atlantic Garden.' Saloon kept, witness thinks, by Mr. Zaum. Witness took possession of the tables, and they are at the jail. They are two round tables, and one in the shape of a half moon, with a drawer and a little slip, a small metal plate over a hole for slipping something down into the drawer, covered over with green cloth. The chips were not such as fly from wood when you cut it. Witness supposes they were made of celluloid or bone; something of that sort. They were red, white, and blue. These chips are generally purchased by those desiring to play at a game. He saw one man get $5 for the chips he had in his possession. There was $5.05 coming to him, so he said, but he got $5. This was the night in question. Witness did not, when he went up there, see the defendant, but he appeared on the scene about two or three moments after. The defendant, when he came into the room, asked where Lee was. He came into the room rather excited, and said, 'Where's Lee?' Lee did not appear to be there. He asked the question two or three times. Witness did not know who Lee was, or where he was. Witness removed the furniture Saturday evening. Mr. Wooten was there when he moved it. Witness talked with him. 'He was not there. I met him on the street, and he went up with me.' This was in Duval county, state of Florida.

On cross-examination, he said that on the first table near the door there were some stacks of chips. One party sitting at the table. Two or three stacks of chips turned over, and a pack of cards on the table. Witness, in reply to the question if he considered always the presence of chips, cards, and tables as evidence of gambling, replied: 'I consider it in connection with the surroundings.' The circumstances and surroundings were: 'A number of people around in the room, and a little knowledge I have of my own, in going around the world, would lead me to that conclusion.' 'Question. Then a part of your evidence is drawn from what you have seen in going around the world? Answer. Yes, sir; and what I saw there.' Did not see Wooten when he (witness) went in. Saw some one pay the five dollars in the room; is sure of this. Heard him say there was five cents more coming to him. Wooten, when he came in, came up the stairway witness had entered at.

N. B. Broward testified that he was not at the room the night in question. That night Wooten asked him on what grounds he had arrested him, and witness told him as proprietor of this gambling-house. The next day he asked witness if he (Wooten) could get a few articules out of there that were not of much value, but were of value to him, saying they were worth $8 or $10, and that he would not move any of the fixtures; and witness told him, if he did not move any of the fixtures in the house, he had no objections to his moving anything that was of no consequence to witness.

Captain Floyd testified that he knew of the Atlantic Garden on Newnan street, and has been there, and that the room is used for card-playing. He has seen Wooten deal cards there. Has seen him up there. Has seen him deal, and tell his man Mr. Lee what to do. Lee was dealing. 'Question. You say you have seen him tell Mr. Lee what to do, who...