Opinion
November 20, 1951.
Appeal from the Criminal Court of Record for Dade County, Ben C. Willard, J.
Roberts, Holland Strickland, Miami, for appellant,
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
The appellant, Charlie Harris, was informed against by the County Solicitor of Dade County, Florida, in two separate counts. Counts 1 and 2 are drafted under the provisions of Section 849.09, F.S.A. Count 1 charged that Charlie Harris, on April 18, 1951, in Dade County, Florida, unlawfully had in his possession certain implements and devices for conducting a lottery commonly known as bolita or Cuba or numbers, said device and implements being a part of the paraphernalia for conducting the aforesaid lottery; that the aforesaid Charlie Harris was then and there interested in the conduction of said lottery and possessed said implements and devices for said purpose. * * *
The appellant Harris was placed upon trial before the Judge of the Criminal Court of Record of Dade County, a jury being waived, and the trial Court, after hearing all the evidence, found him guilty under Count 1 of the information. Count 2 thereof was nol prossed. A motion for a new trial was made and denied, when the Court sentenced the defendant-appellant to pay a fine of $1,000 and in default thereof be confined to the State Prison for a term of six months. From this judgment of conviction an appeal has been perfected to this Court.
The record discloses the following stipulation of facts signed by counsel for the appellant and the County Solicitor of Dade County and made a part of the record in this cause:
"It is stipulated and agreed by and between the County Solicitor, in and for Dade County, Florida and undersigned counsel for the defendant, that the facts in this cause are as follows:
"That two deputy sheriffs of Dade County, Florida, arrested the defendant while he was in his automobile on a public highway of Dade County, Florida, and found in defendant's possession a number of dead lottery tickets, and that the only legal question involved in this cause is as follows: Whether or not dead lottery tickets constitute implements and devices for conducting a lottery or are a part of the paraphernalia for conducting the lottery.
"It is further stipulated that on May 24, 1951, immediately after the defendant was adjudicated guilty, counsel for the defendant orally moved the Court for a new trial on the ground that the verdict was contrary to the law and that the Court thereupon denied said motion."
The burden of proof under the law rests on the State of Florida to establish by competent evidence the guilt of the defendant, as alleged in the information, beyond a reasonable doubt. If a reasonable doubt exists as to his guilt after a careful consideration of all the evidence, then the defendant below was as a matter of law entitled to the benefit of the doubt and to an order of discharge. The burden of proof was on the State of Florida to establish that the tickets in the possession of Harris as he sat in his automobile on April 18, 1951, "were lottery tickets in a lottery yet to be played." Since it failed to establish this essential allegation of Count 1 of the information, it became the duty of this Court to reverse the judgment of conviction entered below. See D'Alessandro v. State, 114 Fla. 70, 153 So. 95.
Reversed.
SEBRING, C.J., TERRELL, J., and LEWIS, Associate Justice, concur.