Opinion
July 7, 1950. Rehearing Denied July 29, 1950.
Appeal from the Circuit Court for Madison County, R.H. Rowe, J.
R.C. Horne, Madison, for James King.
David Lanier, Madison, for Dave Edwards.
Richard W. Ervin, Attorney General and Philip Goldman, Assistant Attorney General, for appellee.
On May 21, 1948, a grand jury of Madison County, Florida, indicted James King, Dave Edwards, Brownie Spencer and Neal Smith for the crime or offense of conducting a lottery commonly known as Cuba in Madison County, Florida, on January 3, 1948. They were placed upon trial before a jury and verdicts of guilty were rendered against James King, Dave Edwards and Neal Smith, but the trial court directed a verdict of not guilty in behalf of Brownie Spencer. Each defendant was sentenced to serve a period of two years in the State Prison at hard labor. James King and Dave Edwards appealed.
Counsel for appellants seasonably presented to the Court below their motion for a severance on the theory that the record failed to disclose any joint act or conduct of the defendants-appellants in the commission of the alleged offense and the alleged crime was a separate and distinct criminal violation. The motion for a severance was denied and it is here contended that the order of denial constitutes reversible error. Section 918.02, F.S.A., makes such orders largely discretionary and the burden of establishing reversible error under the law rests upon the appellants. It has not been clearly shown that the trial court abused its discretion in entering the order complained of. See Carroll v. State, 139 Fla. 233, 190 So. 437.
Questions 2, 3 and 4 of appellant King and question 1 of appellant Edwards challenge the sufficiency of the testimony to sustain the verdicts of the jury. It is quite true, as disclosed by the record, that some of the points emphasized by counsel for appellants in both their briefs and oral arguments heard at the bar of this Court, may, at the first glance, appear plausible and meritorious, but applicable here is a long line of our decisions to the effect that disputes and conflicts in the testimony under our system are for the jury, under appropriate instructions as to the law by the trial court.
The record discloses that the Sheriff of Madison County learned that certain parties engaged in the Bolita racket would be on the bus leaving the City of Madison and traveling to the City of Live Oak on the morning of January 3, 1948. Accordingly, the bus was stopped a short distance out of Madison on the highway to Live Oak and the Sheriff and a special Deputy entered the bus and arrested the four defendants named in the indictment. There is testimony to the effect that the appellants threw Bolita tickets about the rear end of the bus and the Sheriff testified that same were lottery tickets in a game yet to be played as prohibited by Section 849.09, F.S.A.
On the question of the possession of the Bolita tickets by the appellants while they were en route to Live Oak may be a little skimpy but it was satisfactory or convincing to the jury and it is impossible for us to hold the evidence on these "skimpy points" legally insufficient. The Sheriff testified that he was familiar with Bolita and his testimony left a strong inference, if believed, that the appellants with the Bolita tickets were en route to Live Oak where the information as to the throwing was obtainable about a pool room in Live Oak. The tickets taken from the appellants were Bolita according to the testimony if believed. The jury heard the witnesses, argument of counsel and charge of the court and rendered the verdicts here challenged. The trial court was satisfied with the sufficiency of the testimony as he denied the motion for a new trial. We cannot under our adjudications substitute our judgment for that of the jury sworn to settle the disputes and conflicts in the testimony.
Affirmed.
ADAMS, C.J., and TERRELL, CHAPMAN and ROBERTS, JJ., concur.
HOBSON, J., concurs in part and dissents in part.
THOMAS, J., agrees to conclusion of opinion by HOBSON, J.
SEBRING, J., dissents and concurs in opinion by HOBSON, J.
I concur in the judgment of affirmance insofar as the conviction of James King is concerned. However, I cannot agree that the evidence against Dave Edwards is legally sufficient to sustain the judgment of conviction as against him.
The Sheriff testified that he did not see Edwards dispose of anything at the time that he stopped the bus and apprehended the suspects. The only evidence of possession of Bolita tickets on the part of Edwards is to be found, if at all, in State's Exhibit No. 6. This pocketbook which was taken from the person of Edwards contains some slips of paper, with numbers written thereon in pencil, and a small amount of cash. No one of these slips has written upon it any numbers which disclose or indicate that it was a Bolita ticket in an active lottery. On page 51 of the transcript we find the Sheriff was asked the following: "Is there anything about that to indicate it to be a lottery to be played in the future?"
To this query the Sheriff answered "No".
It is clear that none of the slips of paper taken from the person of Edwards was sufficient per se to meet the requirements of a Bolita ticket in an active lottery as defined in many of our prior opinions.
I, therefore, concur in the judgment of affirmance of the conviction of James King but dissent from the judgment of affirmance of the conviction of Dave Edwards.
THOMAS, J., agrees to conclusion.
SEBRING, J., concurs.