Vanderhorst, Alias Moon v. State

ADAMS, J: Appellant went to trial on an information in two counts. The first charged the maintaining of a gambling room for the purpose of gambling. The second *622 count charged the defendant of having control and management of a gambling room and suffering others to gamble therein. The information was based on Section 7657, C. G. L., now Section 849.01, Florida Statutes, 1941. There was an acquittal on the first and a conviction on the second. The pertinent part of the statute under which the conviction was had provides : “Whoever ... in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever . . .” Thus it will be seen that the State alleged more than was necessary in the second count when charging the room maintained was a “gambling” room. Having alleged such fact, then is the State required to prove same or can it be treated as surplusage? The Criminal Procedure Act of Florida provides in Section 124: “Surplusage. Any allegation unnecessary under existing law or under the provisions of this chapter may, if contained in an indictment, information or bill of particulars, be disregarded as surplusage.” Section 309 of the Criminal Procedure Act of Florida provides: “When Judgment Not to Be Reversed or Modified. No judgment shall be reversed unless the appellate court after an examination of all the appeal papers is of the opinion that error was committed which injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.” *623 The information was sufficiently definite and certain to meet all constitutional requirements. The error pointed out was in appellant’s favor in that the court charged the jury that under the second count it was incumbent on the State to prove that defendant had charge of a gambling room and suffered others to gamble therein. The evidence is convincing to us, as it evidently was to the jury, that appellant caused his tables to be delivered to the room the night before; that he secured a man who had worked for him before to deal the cards and operate the game; that he delivered a cut box or “kitty” to his dealer; that he retained a key to the cut box; that he instructed his dealer to enlist another negro to coax the people to the place for gambling. The State is not required to prove the personal presence of the accused in the room in order to prove control of the room, or that the accused had the exclusive control of same. Appellant also contends that his acquittal under the first count is a bar to a conviction under the second as here charged. We find this without merit also. The statute under which this prosecution was had is in the disjunctive and denounces two separate crimes. We have carefully studied the briefs filed and have likewise read the testimony and have given due consideration to the sentence imposed. From the record as a whole, we find no reversible error. The judgment is affirmed. WHITFIELD, TERRELL, CHAPMAN, JJ., concur. THOMAS, J., agrees to conclusion. BROWN, C. J., and BUFORD, J., dissent.