January 28, 1960. Rehearing Denied February 9, 1960.
Appeal from the Criminal Court of Record for Dade County, George E. Schulz, J.
Ben Cohen, Miami Beach, and Mark O'Quin, Miami, for appellants.
Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
The appellants were adjudged guilty of gambling and operating a gambling house and sentenced to pay fines or to be imprisoned in the Dade County jail upon the charge of operating a gambling house. Sentence on the conviction of gambling was suspended. This appeal was prosecuted from the judgment of conviction and sentence upon the charge of operating a gambling house.
The sole point for determination is whether or not there is sufficient evidence to support the conviction of the offense of operating a gambling house.
The purpose and intent of the statute (§ 849.01, Fla. Stat., F.S.A.) prohibiting operation of a gambling house is to prohibit not the gaming or gambling itself, but to prohibit keeping of a house or other place for any manner of gaming or gambling. See Wilson v. State, 129 Fla. 827, 177 So. 216; Cooper v. City of Miami, 160 Fla. 656, 36 So.2d 195.
The law appears settled in this jurisdiction that in order to convict a person of operating a gambling house, "the ownership or control of the house must be proven, and then it must be proven that by the owner's knowledge and consent or direction some game or device condemned as gambling has been habitually played or carried on there." Creash v. State, 131 Fla. 111, 179 So. 149, 152; see Millman v. State, Fla. 1951, 55 So.2d 713; Grossman v. State, Fla. 1952, 59 So.2d 59.
Upon review of the record, we conclude that the evidence fails to meet the rule as approved in these cases and therefore the judgment and sentence appealed from must be reversed.
CARROLL, CHAS., J., concurs.
PEARSON, J., dissents.
There is no doubt the law is settled by the cases cited in the majority opinion that in order to convict a person of being the operator of a gambling house the ownership or control of the house must be proven. But it has also been established that "The result of the two sections [Sections 849.01 and 849.02], taken together, is to make all parties concerned in the keeping of a gambling house principals, whether in the conduct of the same the one acts as an agent or clerk of another or on his own behalf as principal." McBride v. State, 39 Fla. 442, 446, 22 So. 711, 713; Foote v. State, Fla. 1952, 59 So.2d 628.
It is not incumbent on the state to prove the agency and this may be inferred from the actions of the defendant. Foote v. State, supra. The conclusion of the trial judge sitting as a trier of fact that these defendants were acting as the agents of another in the operation of a gambling house was substantiated by the following evidence: (A) The defendants were engaged in hiding the implements commonly used in games of chance which the officers found upon the premises. See also section 849.05, Fla. Stat., F.S.A. (B) The defendants requested the arresting officers to get rid of the implements of gambling thus to cover up the operation. (C) The defendants remained after the breaking up of the game for the purpose of disposing of equipment. Cf. Lopez v. State, Fla. 1953, 66 So.2d 807.
It seems reasonable to me that the requirement for proof of "ownership or control" of the premises applies only to those charged as "owners", because the next portion of the quoted sentence specifies "then it must be proven that by the owner's knowledge and consent or direction some game or device condemned as gambling has been habitually played or carried on there." It does not seem reasonable to require proof of ownership or control of the premises to convict the croupiers or dealers, who act as agents or clerks of another. Once it is established that there is a principal who "owns or controls", the agents should be subject to conviction whether or not the state is able to prove the identity of the owner of the establishment. I would therefore affirm.