Judges: THOMAS, J.
Attorneys: Whitaker Brothers, for Plaintiff in Error;
George Couper Gibbs, Attorney General, and William Fisher, Jr., for Defendant in Error.
Filed: Apr. 12, 1940
Latest Update: Mar. 02, 2020
Summary: Writ of error brings for review judgment of the conviction of the offense charged as, "did unlawfully and feloniously have in his possession certain implements and devices, to-wit, duplicate tickets in a certain lottery commonly known as Cuba bolita, which lottery was then and there conducted for money, said duplicate tickets being! evidence of an interest in the aforesaid lottery not yet played, and being then and there in possession of the said Tony Russo as a part of the paraphernalia for con
Summary: Writ of error brings for review judgment of the conviction of the offense charged as, "did unlawfully and feloniously have in his possession certain implements and devices, to-wit, duplicate tickets in a certain lottery commonly known as Cuba bolita, which lottery was then and there conducted for money, said duplicate tickets being! evidence of an interest in the aforesaid lottery not yet played, and being then and there in possession of the said Tony Russo as a part of the paraphernalia for cond..
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As the two offenses charged in count one, and also in count three, are not only separate and distinct offenses, but are inconsistent and repugnant the one to the other, the holding in Irvin v. State, 51 Fla. 51, 41 So. 785, is not applicable here. The motion to quash these two counts should therefore, in my opinion, have been granted. It is elementary that two separate and inconsistent offenses cannot be combined in one count of an information or indictment. To do so would conflict with Sections 11 and 12 of the Declaration of Rights contained in
our Constitution. I might add that I did not participate in the decision of the Grello case, which is not yet a binding precedent, because rehearing has been granted in that case.
