Judges: PER CURIAM.
Attorneys: Pine Giblin and Ernest E. Roberts, for Plaintiffs in Error;
Cary D. Landis, Attorney General, and Tyrus A. Norwood,
Assistant Attorney General, for the State.
Filed: Jul. 08, 1938
Latest Update: Mar. 02, 2020
Summary: 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
Summary: 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 w..
More
It does not appear that Baker "had, kept, exercised or maintained" the proprietor's (Dunn's) place of business as a "gaming room," as denounced by Sec. 7657, C.G.L. It appears that he placed bets on the results of horse races in Dunn's place of business without the proven knowledge of Dunn, the proprietor, and that Baker was therefore guilty of gambling, as denounced by Section 7672 C.G.L., and a conviction under the second count could have been sustained. But he was convicted under the first count, which as to him, does not appear to be sustained by the evidence. One cannot be guilty of "keeping a gaming house" without guilty knowledge, and one cannot be the agent, clerk or servant of a "Keeper of a gaming house" where there is no such keeper. The jury therefore convicted Baker under the wrong count. See Wooten v. State, 24 Fla. 335, 5 So. 39. If the evidence had shown that Baker was, with Dunn's knowledge, violating the law in the capacity of clerk, agent or servant of Dunn, I think this conviction under the first count could
have been sustained, even though he was informed against as a co-principal. McBride v. State, 39 Fla. 442, 22 So. 711.
ELLIS, C.J., concurs.
ON PETITION FOR REHEARING
