This case is before us pursuant to rehearing granted and argument heard after our granting of such rehearing pursuant to opinion filed herein on April 12, 1940.
The defendant was convicted under counts 1 and 3 of the information. The pertinent parts of the counts of the information upon which defendant was convicted are set out in our opinion, supra. The statute on which the information is based is Section 5509 R. G. S., 7667 C. G. L, which is as follows:
"It shall be unlawful for any person, firm or corporation in this State to set up, promote or conduct any lottery for money or for anything of value; or by means of any lottery to dispose of any money or other property of any kind whatsoever; or to conduct any lottery drawings for the distribution of prizes, by lot or chance, or to advertise any such lottery scheme or device in any newspaper or by circulars, posters, pamphlets or otherwise; or to sell or to offer for sale, or to transmit by mail or otherwise, any lottery tickets, coupons or share in or fractional part of any lottery ticket, share or coupon; or to attempt to operate, conduct or advertise any lottery scheme or device; or to have in his, their or its possession any lottery wheel, implement or device whatsoever for conducting any lottery or scheme for the disposal by lot or chance of anything of value; or to have in his, their or its possession any lottery *Page 601 ticket or evidence of any share or right in any lottery ticket, or in any lottery scheme or device; or to have in his, their or its possession any lottery advertisement, circular, poster or pamphlet, or any list or schedule of any lottery prizes, gifts or drawings, or to aid or assist in the setting or conducting of any lottery, either by writing, printing or otherwise; or to be interested in, or connected in any way with any lottery or lottery drawing; or to aid or assist in the sale, disposal or procurement of any lottery ticket, coupon, share or right to any drawing therein. Any violation of this section shall be a felony, and shall be punished by a fine of not less than five hundred dollars, nor more than five thousand dollars, or by imprisonment in the State penitentiary not less than one year, or more than ten years."
It will be observed that the section clearly denounces the commission of several different acts, any one of which constitutes a felony.
Count 1 of the information charges that the defendant had "in his possession certain implements and devices, to-wit: duplicate tickets in a certain lottery commonly known as Cuba bolita, which lottery was then and there conducted for money, said duplicate tickets being evidence of an interest in the aforesaid lottery not yet played." This allegation charges an offense under that language of the statute above quoted, which is: "to have in his, their or its possession any lottery ticket or evidence of any share or right in any lottery ticket, or in any lottery scheme or device." This count of the information then charges: "and being then and there in possession of the said Tony Russo as a part of the paraphernalia for conducting the aforesaid lottery." This allegation charges the offense denounced by the statute as follows: "to have in his, their or its possession any lottery wheel, implement or device whatsoever for conducting any *Page 602 lottery or scheme for the disposal by lot or chance of anything of value." In other words, this count charges two different offenses. One is that he had in his possession duplicate tickets being evidence of an interest in a lottery not yet played; and the other is that he had in his possession certain duplicate lottery tickets as a part of the paraphernalia for conducting a lottery.
The third count of the information possesses the same infirmity as the first count.
Motion to count of the information was duly filed in the court below and the denial of the motion to quash was assigned as error. One of the grounds of the motion to quash was that, "the allegations of the information are so vague, indefinite and uncertain that a conviction or acquittal of this defendant would not protect him on future prosecutions for the same offense."
The allegations of the information, as heretofore stated, charged the commission of two felonies by one and the same act and it is impossible to determine from the record whether the defendant was convicted of having in his possession a ticket which was evidence of an interest in a lottery, yet to be played, or was convicted of having in his possession an implement or device for conducting a lottery for the disposal by lot or chance of a thing of value.
The two offenses charged in each of the first and third counts of the information are so distinctly separate offenses as they would have been had the information charged in one count that the defendant had in his possession a lottery wheel for conducting a lottery for the disposal by lot or chance of anything of value, and also that the defendant had in his possession a lottery ticket which was evidence of an interest in a lottery yet to be played. For authorities supporting this view see James v. State, 4 Okla. Criminal *Page 603 587, 112 P. 944, 140 Am. St. 693; State v. Ayers, 49 Or. 61,88 P. 653, 124 Am. St. 1036; John Francis, et al., v. United States, 23 Sup. Ct. 334, 188 U.S. 375; State v. Mann, 2 Or. 238.
One of the offenses charged is applicable against a person who conducts the lottery, while the other offense is applicable to the person who participates in the lottery only by contributing to the fund. In common parlance, one is the "house" and the other is the "player." One person cannot consummate both offenses because if a person conducts a lottery there must be players to contribute to the fund which is to be used to pay off.
It, therefore, follows that the two offenses charged are inconsistent, one with the other.
Some of the offenses denounced by the statute,supra, are not inconsistent and might be charged in one count of the indictment or information conjunctively and in such cases the rule stated in Stedman v. State, 80 Fla. 547, 86 So. 428, would be applicable. But this information charges two separate, distinct and inconsistent offenses and is, therefore, ruled by Griswold v. State, 77 Fla. 505, 82 So. 44; Stokes v. State, 65 Fla. 416, 62 So. 345.
For the reasons stated, the judgment should be reversed.