Opinion
February 26, 1952.
Appeal from the Circuit Court for Marion County, F.R. Hocker, J.
Watkins Cohen, Tallahassee, and E.G. Musleh, Ocala, for appellants.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
Appellants, Shuler, McLendon and Florence were charged with conspiracy to commit the crime of conducting and maintaining a lottery known as "Cuba" in violation of Sec. 833.01, F.S.A. Each entered a plea of not guilty. They were tried, found guilty by the jury and sentenced by the court to imprisonment for one year at hard labor in the State prison. They have severally appealed from this judgment.
Their appeals raise several points but the only one argued before this court challenges the sufficiency of the evidence to convict. They offered no evidence at the trial so the only question is — did the State's evidence establish guilt beyond a reasonable doubt? We have carefully considered this evidence, entirely circumstantial against Shuler, and agree with the Attorney General that it is too inconclusive and falls short of establishing guilt. Adams v. State, 96 Fla. 356, 118 So. 204; McFeeters v. State, 96 Fla. 660, 118 So. 919; Armstrong v. State, 107 Fla. 494, 145 So. 212. The evidence against McLendon and Florence in the testimony of the witnesses is direct, positive and definite. It was accredited by the jury and attested by their verdict of guilt. It supplies adequate predicate for the verdict and judgment.
The Attorney General in his brief points out that the judgment inadvertently ordered that the defendants serve one year in the State prison at hard labor, whereas it should have provided for a sentence in the County jail or fine. The crime is a misdemeanor and not a felony.
The cause is reversed for a new trial as to Shuler and affirmed and remanded for proper sentence as to McLendon and Florence.
SEBRING, C.J., and CHAPMAN and MATHEWS, JJ., concur.