Opinion
July 10, 1951.
Appeal from the Circuit Court for Pinellas County, John U. Bird, J.
M.H. Jones, Clearwater, and Atkinson Atkinson, Tallahassee, for appellant.
Richard W. Ervin, Atty. Gen., and Murray Sams, Jr., Asst. Atty. Gen., for appellee.
Tony Martinez was informed against and convicted of unlawful possession of lottery tickets; also with operating a lottery.
Upon this appeal he questions the sufficiency of the evidence to sustain the verdict and judgment.
The State's case rests upon circumstantial evidence. The law is well settled that such evidence must not only be consistent with guilt, but inconsistent with innocence in order to sustain a conviction.
The evidence relied upon disclosed that for a period of time certain police officers of the City of St. Petersburg noticed regular nightly meetings of automobiles on a certain street where the cars would meet and signal by blinking the cars' lights. This practice prompted two policemen to appear at the meeting place. When the cars met, as usual, and paused adjacent to each other the policemen approached in two police cars. When the cars moved away in opposite directions, both cars were followed by the police officers. The first car apprehended proved to be occupied by a Mr. and Mrs. Walter Kraemer. Their car contained live lottery tickets and currency in paper bags. The other car was not stopped immediately. The officer who followed it obtained the license tag number. Within a matter of minutes, or about an hour, a police radio message went out to pick up the second car and it was soon in police custody. It was in the custody of this appellant Martinez. So far as this record reveals, no evidence was in the car or in Martinez' possession to connect him with the crime charged. He made no incriminating statement, and did not testify. It is a supposition which the jury evidently accepted that Martinez was passing the lottery tickets to the Kraemers. Martinez also forfeited an appearance bond in the city court involving the same or a similar charge.
We have briefly summarized the evidence to show that it does not meet the rule in that it fails to make a case under the announced circumstantial evidence rule. Therefore, the judgment is reversed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.