This case is before us on writ of error to judgment of conviction against the plaintiffs in error under an information in two counts. The first count charged them with the offense of maintaining and operating a gambling room. The second count charged them with the offense of keeping and maintaining certain gaming implements and apparatus * * * for the purpose of gaming and gambling. All except Ben Mack were convicted under both counts and Ben Mack was convicted under the second count only.
On the trial it was shown that a deputy sheriff and a police officer broke and entered into a room where plaintiffs in error and other persons were congregated. In this room *Page 312 there were five telephones, some horse race charts, scratch sheets, betting sheets and tickets. The officers were unable to testify that any gambling was being conducted in the room or with the implements and apparatus at the time they with force and violence entered the room.
The chief attack in this case is centered upon the validity of Section 5506 R. G. S., 7664 C. G. L., but the record in the case is such that we are not required to pass upon the question as to whether or not this section of the statute is valid or invalid.
The evidence upon which the State relied for conviction was entirely circumstantial and, therefore, the rule applicable is that the evidence as a whole must be so strong, cogent and convincing as to exclude every reasonable hypothesis except the guilt of the accused.
The evidence is that the deputy sheriff and police officer heard the telephones clicking and ringing and that they heard some conversations over the telephones, but they did not know what those conversations were about, nor did they know who was doing the talking at the other end of the line. The evidence was sufficient to create a very substantial suspicion that the plaintiffs in error were operating some sort of gambling enterprise in the room, but the rule is well settled that one charged with a criminal offense cannot be convicted on guess work and suspicion.
The implements and apparatus described in the information were seized by the officers at the time they entered the room without being armed with a search warrant. Inasmuch as the officers were unable to say that any crime was being committed when they entered the room, there can be no question that the seizure was in violation of Section 22 of the Declaration of Rights of the State of Florida and *Page 313 the Fourth Amendment of the Constitution of the United States.
The evidence shows that the paraphernalia offered in evidence was unlawfully seized and, therefore, its being admitted in evidence was error.
If, however, the paraphernalia and evidence in connection therewith had all been legally obtained and properly admitted, there was still not sufficient evidence either to show that the room was maintained or operated by either of the plaintiffs in error as a gambling room or that the implements and apparatus were kept or maintained by either of the plaintiffs in error for the purpose of gaming or gambling.
For the reasons stated, the judgment should be reversed and it is so ordered.
Reversed.
WHITFIELD, ELLIS and TERRELL, J. J., concur.
DAVIS, C. J., concurs specially.