Opinion
April 4, 1952.
Appeal from the Criminal Court of Record for Hillsborough County, L.A. Grayson, J.
John S. Berry, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
In this case the appellant was convicted upon the first and second counts of an information containing four counts. The first count charged that on a certain date he did unlawfully and feloniously have in his possession certain tickets in a lottery commonly known as "New York Bond", which said lottery was then and there conducted for money. The second count charged the same thing, except, instead of charging about "New York Bond", it charged him with reference to "bolita". The third and fourth counts charged him with selling for money a share or right in bolita in the third count and New York Bond in the fourth count.
A motion to suppress as evidence a pencil, pads, lottery tickets and money, was filed and overruled. Appellant was then arraigned and filed pleas of "Not Guilty" as to each count of the information.
Most of the damaging testimony was brought about by the appellant on cross-examination although there was material testimony on direct examination. The two principal witnesses were the two deputy sheriffs of Hillsborough County. Their testimony is in substantial accord on all material questions.
These deputy sheriffs qualified on direct and, more particular, on cross-examination as experts with reference to gambling in general and New York Bond and bolita in particular. They had information about the appellant's place of business. Without contradiction, they testified that they knew it to be a gambling place. Based upon the information which they had, they went to the place and saw the appellant with a pencil in his hand and paper pads on the counter directly in front of him. As Deputy Sheriff Williams approached the appellant he put the pencil down. He knew the pads constituted a part of the usual paraphernalia used in playing bolita and New York Bond. When Williams went in, he walked up to the appellant, saw the pencil and paper and put him under arrest. He then "picked up the stuff", that is, the pencil and paper pads, and saw what it was. Numbers had been written on the pad. He knew they were New York Bond numbers and bolita numbers. No good purpose could be served by going into all of the details as to why he knew the difference between New York Bond numbers and bolita numbers.
Williams further testified that the pads contained a list of lottery numbers and that the tickets in the lottery were "live" and were yet to be played. He explained to the jury in great detail how he knew this. On cross-examination Mr. Williams testified very definitely that since the shutdown on the bolita racket in Tampa and the bond racket in Cuba, there were thousands of these pads floating around. The following took place on cross-examination: "Q. Was this a known bolita place this man had? A. Oh, yes, we had information he was selling."
Although the appellant propounds several questions, they may be summarized into two questions: (1) Did the trial court commit error in not granting defendant's motion to suppress the evidence seized by the officers? and (2) Was the evidence sufficient to warrant conviction?
As to question number (1), the appellant developed on cross-examination that the officers had reasonable grounds to believe that a felony had been, or was being, committed in the place in question, and based upon this information they went to the place and without any seizure or search, saw the appellant with a pencil in his hand, pads on the counter immediately in front of him and then made the arrest. This arrest was legal. These officers with the information which they had and being thoroughly familiar with lottery operations, had reasonable grounds to believe that a felony was being committed when they saw the appellant with a pencil in his hand and bolita pads immediately in front of him on the counter. They saw the lottery tickets and after the arrest they seized them and made such search as was necessary to find the money and seized the money near the scene of operations. The arrest and whatever search and seizure resulted were legal, and the Court did not commit error in refusing to grant the motion to suppress the evidence. See Diaz v. State, Fla. 43 So.2d 13; Brown v. State, Fla., 46 So.2d 479; and Italiano v. State, 141 Fla. 249, 193 So. 48.
As to the second count, the evidence was amply sufficient to justify a verdict of "Guilty" on counts one and two of the information, and the Court did not commit error in refusing to direct a verdict of "Not Guilty" for the appellant, or in denying his motion for a new trial.
We have carefully examined the record and find that all of the assignments of error are without merit and that there is no reversible error in the record.
Affirmed.
SEBRING, C.J., CHAPMAN, J., and GILLIS, Associate Justice, concur.