Dunn v. State , 133 Fla. 355 ( 1938 )

This case is here for review on writ of error to the Criminal Court of Record of Dade County, Florida, wherein the defendants were informed against in two counts by the County Solicitor of Dade County. The first count of the information charged the defendants with operating a gambling house on the 5th day of March, 1937, and did unlawfully operate and maintain a room at "Chet's Bar" for gambling purposes, contrary to Section 7657 C.G.L. The second count of the information charged the defendants with gambling. They were arraigned, and each entered a plea of not guilty to each count of the information, and were placed on trial and each convicted under count one of the information, and sentenced to the State Penitentiary at hard labor for a period of four months. The defendants filed separate motions for a new trial and the same by the lower court were overruled and denied.

The transcript shows that when all the evidence had been adduced, counsel for the defendant, Chet Dunn, moved the court for a directed verdict because of the lack of evidence showing a knowledge of any bets being made in his place of business and, further, there was no evidence offered to show he was present at any time when bets were made. The motion for a directed verdict was overruled or denied and the record fails to show an exception to this adverse ruling, but exceptions were allowed to the order overruling and denying the motions for a new trial.

The sole question presented here is the sufficiency of the evidence to sustain the verdict. The evidence shows that the defendant Dunn owned and operated a bar and pool room in Miami, and that the defendant Baker worked for him on a commission basis. Baker was supposed to wait on the trade at the bar, but when visited by the State's witnesses he was never seen with an apron on or serving the customers of the bar, but occupied a place near the bar and would receive money and would write the number of the horse on the bar, call up over the telephone and place the bet, and then erase the number with a wet rag. The witness Law placed some bets with the defendant Baker, who was arrested and searched and on him were found the serial numbers of certain small bills which were obtained through the County Solicitor. We hold there is ample testimony to sustain the verdict and judgment against the defendant Baker.

Where there is evidence from which all the essential elements of crime may legally have been found, and it does not appear that the jury was influenced by considerations other than the evidence, the order of the trial court refusing to grant a new trial on account of the insufficiency of the evidence, or because the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions for the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust. Pickerson v. State,94 Fla. 268, 113 So. 707. See Bullard v. State, 95 Fla. 997,117 So. 381.

The witness Law testified that he made four visits to the bar and had seen the defendant Dunn there but one time and did not know what interest he had in the bar, if any, or the profits from betting. He was never seen with marked money as the defendant Baker. The witnesses for the State identified Baker with operating the gambling room and not the defendant Dunn. We think the motion for a directed verdict for the defendant Dunn should have been granted. In the case of Cannon v. State, 102 Fla. 928, 136 So. 608, the Court considered the question of directing a verdict in a criminal case and said:

"As will be noted by a reference to the foregoing statute, the Legislature has now provided that if after all the evidence shall have been submitted on behalf of the State in any criminal case it be apparent to the judge that no evidence has been submitted upon which the jury could lawfully find a verdict against the defendant in any criminal case that the judge shall upon motion of the defendant direct the jury to find a verdict for the defendant.

"The effect of the 1925 amendment to pre-existing statutes was to make the same rule applicable in criminal cases that is applicable in civil cases with reference to the direction of verdicts by the court and the right to assign error based upon refusals to direct verdicts in cases where verdicts should have been directed. If, therefore, in the present case the judge of the criminal court should have directed a verdict finding the defendants not guilty because of a substantial failure in the State's proof to establish an element of the crime charged, such refusal is assignable in this Court and if the error is found to be well taken, the judgment is subject to reversal therefor."

If there was not sufficient evidence to legally support a verdict for the State in the case at bar, it was the duty of the trial court to direct a verdict for the defendant. See Cameron, etc., Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814; Florida East Coast Ry. Co. v. Hayes, 66 Fla. 589, 64 So. 274; Roger Co. v. Meinhardt, 37 Fla. 480, 19 So. 878; Varnes v. Seaboard Air Line R. Co., 80 Fla. 624, 86 So. 433; Burton v. McCaskill, 79 Fla. 173, 83 So. 919; Florida East Coast R. Co. v. Carter, 67 Fla. 335, 65 So. 254, Ann. Cas. 1916E, 1299; Stevens v. Tampa Elec. Co., 81 Fla. 512, 88 So. 303; Smith v. Tampa Elec. Co., 82 Fla. 79, 89 So. 352; Greenblatt v. Bissell Dry Goods Co., 85 Fla. 83, 95 So. 302; Rogers v. Martin, 87 Fla. 204, 99 So. 551; Florida East Coast R. Co. v. Davis, 96 Fla. 171,117 So. 842, 844; Nelson v. Hall, 73 Fla. 810, 74 So. 877.

The judgment against Carlton Baker appealed from is affirmed and same is hereby reversed and a new trial granted as to Chester Dunn. It is so ordered.

WHITFIELD and BUFORD, J.J., concur.

ELLIS, C.J., and BROWN, J., dissent.