Opinion
January 4, 1952.
Appeal from the Criminal Court of Record, Dade County, Ben C. Willard, J.
Roberts, Holland Strickland, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Phillip Goldman, Asst. Atty. Gen., for appellee.
The appellant was convicted of the crime of possessing lottery tickets in a lottery yet to be played. He appealed from the judgment of conviction. The primary question raised on this appeal is whether the evidence is sufficient to establish beyond a reasonable doubt that certain slips of paper taken from the appellant at the time of his arrest represented a live interest in a lottery not yet played, in violation of section 849.09 Florida Statutes, 1941, F.S.A.
According to the brief filed by the State of Florida, the alleged lottery tickets were destroyed by order of the trial court prior to this appeal. Hence we do not know whether there was anything printed or written on them to support the State's contention that they represented an interest in a lottery yet to be played. All that we have in the record to establish this indispensable element of the offense charged is the evidence given by the arresting officer who testified, in substance, that on February 3, 1951, as he was passing a certain barroom in the City of Miami he looked through the front door and saw the appellant standing on a porch to the rear of the building holding certain slips of paper in his hand. Suspicioning that the slips of paper might be bolita tickets, the arresting officer entered the barroom and proceeded toward the rear for the purpose of placing the appellant under arrest for possessing lottery tickets. As he approached the appellant the latter "attempted to dispose of what he had in his hand." In answer to a question put by the County Solicitor, "Do you know whether these are live tickets?" the arresting officer testified further: "I know they are live tickets from the fact that he tried or attempted to dispose of them."
It is our view that the testimony given by the arresting officer was not sufficient to establish the guilt of the defendant of the crime charged, for under the adjudicated cases it takes something more than proof of suspicious circumstances to sustain a conviction for crime. The qualified statement of the witness as to the character of the slips of paper in the possession of the appellant at the time of his arrest was, at best, a mere opinion of the witness. It could not be said to be proof beyond a reasonable doubt of the fact that the appellant had in his possession "lottery tickets or evidence of a share or right in a lottery yet to be played for money or other thing of value, which said lottery tickets were live lottery tickets", as charged in the information. It therefore follows that the State did not meet the burden of proof and hence that the judgment appealed from should be reversed.
It is so ordered.
TERRELL, CHAPMAN, THOMAS, ROBERTS and MATHEWS, JJ., and LEWIS, Associate Justice, concur.