Dunn v. State

On petition for rehearing it is suggested that Carlton Baker and Chester Dunn were indicted and convicted for a violation of Section 7657 C.G.L., and since the evidence was insufficient to sustain a conviction against Chester Dunn that the petitioner, Carlton Baker, should be discharged as he was an employee or agent of Chester Dunn, and as the principal had been discharged, likewise his agent or the employee should be discharged, and that Carlton Baker was guilty of gambling as shown by the evidence and should be prosecuted under Section 7672 C.G.L.

The count of the information under which Carlton Baker was convicted does not charge him under Section 7657 supra, of maintaining a gambling house "as the servant or agent of Chester Dunn," but charges Chester Dunn and Carlton Baker each asprincipal with maintaining a gambling room prohibited by Section 7657 C.G.L. The evidence as to Chester Dunn was insufficient. The contention here is that Baker was informed against in the count one and thusly convicted as the agent and employee of Chester Dunn, when the record shows that Carlton Baker and Chester Dunn were informed against in count one and convicted as principals.

The point is clearly settled against the contention of petitioners as shown by a previous decision of this Court in McBride v. State, 39 Fla. 442, text p. 449, 22 So. 711, when it said:

"It is next contended that this statute makes a distinction between a principal and an agent, and that the defendant *Page 361 here was charged as principal, and could not be convicted when the proof showed that he kept and conducted the house as agent merely for other parties who were his principals, and that the court erred in excluding evidence offered to show that he acted only as agent in keeping and conducting the house for other parties. There is no merit in this contention. Section 2645 of the Revised Statutes, immediately following the one under which the information is laid, provides as follows: `whoever acts as servant, clerk, agent or employe of any person in the violation of the preceding section shall be punished in the manner and to the extent therein mentioned.' The result of the two sections, taken together, is to make all parties concerned in the keeping of a gambling house principals, whether in the conduct of same the one acts as agent or clerk of another, or on his own behalf as principal. The first two sections makes the principal liable whether he conducts the establishment in person, or has it conducted for him by an agent, clerk or servant. When conducted by an agent, clerk, or servant, the second of the two quoted sections makes such agent, clerk or servant a principal in the crime equally punishable with his employer, and it is not necessary to indict or charge him as agent, but he can be informed against as principal and convicted upon proof showing that he violated the law in the capacity of agent for another."

There is no conflict in the case of McBride v. State, supra, and Wooten v. State, 24 Fla. 335, 5 So. 39, 1 L.R.A. 819. The McBride case affirms the construction of the statute made in the Wooten case and goes one step further and settles one point of criminal procedure that was not presented or decided by the Court in the Wooten case. The point settled in the McBride case is found at page 449 and is in the following language: "When conducted by an *Page 362 agent, clerk or servant, the second of the two quoted sections makes such agent, clerk or servant a principal in the crimeequally punishable with his employer, and it is not necessary toindict or charge him as agent, but he can be informed against asprincipal and convicted upon proof showing that he violated thelaw in the capacity of agent for another." (Emphasis supplied.) There is no conflict in these two cases.

In the case of Ponder v. State, 76 Fla. 526, text p. 528-9, 80 So. 411, the Court had before it the identical statute now before the Court and held: "that the statute applies to whoever,directly or indirectly, suffers or permits any person to play formoney at any game whatever, in any place of which he may havecharge, control or management either exclusively or with others." (Emphasis supplied.) The Court further said:

"In the case of McBride v. State, 39 Fla. 442, 22 South. Rep. 711, in construing this statute, this Court held that `the purpose and intent of the section of the Statute under discussion was to prohibit, not the gaming or gambling itself, but thekeeping of a house or other place for any manner of gaming or gambling.' And it will be noted that the statute applies to whoever, directly or indirectly suffers or permits any person to play for money at any game whatever, in any place of which he may have charge, control or management either exclusively or with other.

"The contention and practically the only contention, that is made, is that the place in which the game described in the indictment was played, was in the charge, control or management of the defendant and his brother, and that, therefore, there is a fatal variance between the allegations and the proof, since the indictment alleges that such place was in the exclusive possession and control of the defendant." See Toll v. State,40 Fla. 169, 23 So. 942; Reinmiller v. *Page 363 State, 93 Fla. 462, 111 So. 633; Miller v. State, 129 Fla. 831,177 So. 204.

Petition for rehearing denied.

ELLIS, C.J., and WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.