40 Fla. 160 | Fla. | 1898
On September 13, 1897, the County Solicitor filed in the Criminal Court of Record of Monroe county an information against plaintiff in error, containing sixteen counts. Each count charged that the offense was com
Defendant filed his plea to this information, alleging that on September 3, 1897, he was tried and convicted in the police justice’s court of the city of Key West, upon a charge “that Leon Bueno did within the said city on the 1st day of September, 1897, violate ordinance No. 39, section 1, by setting up and promoting an establishment for the purpose of playing a game for money, the result of which game is dependent upon lot, number and chance, contrary to the form of the ordinance in such case made and provided, and against the peace and dignity of the city of Key West,” and sentenced to pay a fine of $100, and in default of such payment that he be committed to the city prison for sixty days, which judgment and sentence still remained in force; that defendant was the identical person so tried and convicted, and that the offense of which he was convicted was the same as the one charged against him by this information. The court sustained a demurrer to this plea, which ruling is assigned as error. Defendant then filed a demurrer to the several counts in the information assigning as grounds: “1st. They do not set out the facts which constitute the offense charged. 2nd. That none of the sixteen counts in said information sufficiently set forth the essential facts upon which the several counts are based.” The court overruled this demurrer, and this ruling is assigned as error. At defendant’s request the court instructed the jury that “to sustain a conviction for selling lottery tickets there must be proof to show that the paper represented a share in a game of chance. ■A lottery is a gaming contract by which for a valuable
The jury found the defendant “guilty as charged in the information.” Defendant’s motion for a new trial was overruled, and the court pronounced sentence as follows: “The sentence of the law is that you, Leon Bueno, pay a fine of one thousand dollars and the costs of this prosecution, in default thereof to be imprisoned by confinement in the State prison at hard labor for a term of one year.” The latter or default feature of this sentence is assigned as error. No objection was interposed by defendant to any evidence offered by the State, nor was there a motion in arrest of judgment upon any particular count of the information, nor is it contended in this court that the evidence was insufficient to support the verdict.
I. The defendant’s special plea constituted no defense, and the State's demurrer thereto was properly sustained. Not only was the police justice’s court of the city of Key West without jurisdiction to try an alleged
II. The information in this case was based upon section 1, Chapter 4373, act of 1895, which provides that “it shall be unlawful for any person, firm or corporation in this State to set up, promote or conduct any lottery for money or for anything of value, or by means of any lottery to dispose of any money or other property of any kind whatsoever, or to conduct any lottery drawings for the distribution of prizes by lot or chance, * * * or to.sell or to offer for sale or to transmit by mail, or otherwise, any lottery tickets, coupon or share in, or fractional part of any lottery ticket, share or coupon, * * * or to be interested in, or connected in any way with any lottery or lottery drawing, or to aid or assist in the sale, disposal or procurement of any lottery ticket, coupon, share or right to any drawing therein. Any violation of this section shall be a felony and shall be punished by a fine of not less than five hundred dollars, nor. more than five thousand dollars, or by imprisonment in the State penitentiary not less than one year, nor more than ten years, or by both such fine and imprisonment.”
The information was for one offense only, though in the several counts it was charged to have been committed by different methods embraced within the alternative provisions of the statute. The punishment was the same, and the offense was the same — a felony — no
It is insisted that the fifth and thirteenth counts are bad because they fail to designate a particular lottery ticket; that the sixth and fourteenth counts are bad because they do not specify the fractional parts of the ticket alleged to have been sold, and that the seventh and fifteenth counts are bad because they do not specify what share in the lottery ticket was sold. These objections are untenable. People v. Taylor, 3 Denio, 99; Freleigh v. State, 8 Mo. 606; State v. Follet, 6 N. H. 53; Dunn v. People, 40 Ill. 465; France v. State, 6 Baxt. (Tenn.) 478. The counts mentioned being good, and several of them being sustained by ample evidence, it becomes unnecessary for us to consider the objections urged to other counts.
III. The instructions numbered consecutively, 1, 2 and 3, requested by defendant were properly refused, because there was no evidence to which they were applicable. The evidence was confined entirely to sales of lottery tickets and to the setting up and promoting of a lottery called “bolito,” by the defendant. There was no evidence of any gambling of that character mentioned in the instructions, and they were, therefore, not only useless but were calculated to confuse and mislead the jury in their consideration of the testimony before them.
IV. The evidence showed that defendant sold for five cents each, slips of paper or tickets which were numbered by the purchasers themselves, selecting the number from a blackboard, after which the tickets were stamped by defendant with a rubber stamp. These tick
V. Section 1, Chapter 4026, act of 1891, provides that “Whenever any court or judge shall under the criminal laws of this State sentence and adjudge a person to pay a fine, or a fine and costs of prosecution, such cp.urt or judge shall also provide in such sentence a period of time for which such person shall be imprisoned in, the county jail in default of payment of the same.” Section 2 of the same act provides that “Whenever the sentence shall be one of both fine and imprisonment, it shall also provide for an additional period of imprisonment in the county jail, or in the State prison, according as the other period of imprisonment may be in a county jail or the State prison, for which such person shall be held, in