Victor v. State , 141 Fla. 508 ( 1939 )

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; Parrish 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 inferrable therefrom. F. 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 the 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.

Justices 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