The leading case of McBride v. State, 39 Fla. 442, 22 So. 711 (1897), states that the purpose and intent of this statute is to prohibit not the gambling itself but the keeping of a house or other place for gambling. Subsequently, at least with regard to the first part of the statute dealing with the keeping or maintaining of a gambling room or house, this Court has required for conviction proof that some game or device condemned as gambling have been habitually played or carried on at a place owned or subject to a defendant's control, with that defendant's knowledge and consent. Grossman v. State, 59 So.2d 59 (Fla. 1952); Millman v. State, 55 So.2d 713 (Fla. 1951); Creash v. State, 131 Fla. 111, 179 So. 149 (1938); Toll v. State, 40 Fla. 169, 23 So. 942 (1898). This Court has also recognized that a defendant might be charged under this statute in separate counts for maintaining or keeping a gambling room or house and for procuring or permitting another to gamble at a place under his control.

The locus in quo was known as the Ritz Drug Store located at 500 Ocean Drive, Miami Beach. There is no direct proof that defendant had any proprietary or other connection with the said drug store. To convict one of operating a gambling house it must be shown that the place was used as such with the owner's knowledge or consent and that some game or device condemned as gambling has been habitually indulged in there. Creash v. State, 131 Fla. 111, 179 So. 149; Millman v. State, Fla., 55 So.2d 713; State v. Hicks, 101 Kan. 782, 168 P. 861; White v. State, 115 Ga. 570, 41 S.E. 986. The evidence not only fails to meet the rule approved in these cases but is deficient in other respects, for which the judgment must be and is hereby reversed.

Fla. Stat. § 849.01 (1969), F.S.A. To convict a person of keeping or maintaining a gambling house under the above statute, it must be proven, inter alia, that "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." Stanger v. State, 117 So.2d 417, 418 (Fla.App. 1960); cf. Perlman v. State, 269 So.2d 385 (Fla. App. 1972).

In order to prove the offense of maintaining a place for the purpose of gambling it is incumbent on the state to prove that the defendant has (a) ownership or control of a place (b) where with his knowledge, direction or consent (c) habitual gambling has been conducted. Creash v. State, 1938, 131 Fla. 111, 179 So. 149; Grossman v. State, Fla. 1952, 59 So.2d 59; Millman v. State, Fla. 1951, 55 So.2d 713. It should be noted, however, that the crime proscribed is not the gambling as such or the habitual use of the property for gambling purposes. It is the maintenance or keeping of a place for gambling purposes. In other words, the statute does not reach the gambling or the gamblers.

] In Millman v. State, Fla. 1951, 55 So.2d 713, the Supreme Court reaffirmed the holding of Creash v. State, supra. Thereafter, this Court in Stanger v. State, Fla.App. 1960, 117 So.2d 417, had occasion to apply the same requirement. The State contends that "frequency" is not an essential element.

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.