The involved statute is quoted in the opinion prepared by Mr. Justice BROWN. *Page 511
The information is in three counts. The first count charges: "that Philip La Russa, Nilo Lima, Tony Rodriguez and Louis Nunez, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 16th day of January, in the year of Our Lord one thousand nine hundred and thirty-nine, with force and arms at and in the county of Hillsborough aforesaid, in a building located at 108 West Fortune Street, in the City of Tampa, State and county aforesaid, did unlawfully write, print and publish lottery tickets and blank tickets, which are a part of the paraphernalia for conducting a lottery drawing, to be used and distributed in the State of Florida. * * *"
This count does not charge the essential element of the offense, to-wit, that such tickets are "in any way connected with any lottery drawing, scheme or device" and fails to describe any lottery drawing, scheme or device in which such tickets are intended to be used.
The second count charges: "that Philip La Russa, Nilo Lima, Tony Rodriguez and Louis Nunez, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 16th day of January, in the year of Our Lord one thousand nine hundred thirty-nine, with force and arms at and in the County of Hillsborough aforesaid, in a building located at 108 West Fortune Street, in the City of Tampa, State and county aforesaid, did unlawfully set up type and plate for the purpose of printing and publishing lottery tickets and blank tickets, which are a part of the paraphernalia for conducting a lottery drawing, to be used or distributed in the State of Florida, * * *."
This count does not make the material allegations that the alleged type or plate was intended to be used to print tickets to be used "in any way connected with any lottery, drawing, scheme or device" and fails to describe any lottery, *Page 512 drawing scheme or device in which such tickets are intended to be used.
The third count charges: "that Philip La Russa, Nilo Lima, Tony Rodriguez and Louis Nunez, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 16th day of January, in the year of our Lord one thousand nine hundred thirty-nine, with force and arms at and in the County, of Hillsborough aforesaid, being then and there the owners of the Elite Printing Company, located at 108 West Fortune Street, in the City of Tampa, State and county aforesaid, did unlawfully and knowingly permit, in said printing shop, the printing and publishing of lottery tickets, and blank tickets, which are a part of the paraphernalia for conducting a lottery drawing to be used and distributed in the State of Florida * * *." This count is insufficient because of the same infirmity that is found in the second count.
The gravamen of the offense denounced by Section 7668 C. G. L. is that the tickets printed or to be printed with the type or plate set up are to be used in connection with a "lottery, drawing, scheme or device." It is just as necessary to allege and prove the lottery in which such tickets are to be used as it is to allege and prove the lottery constituting the basis for a prosecution for the offense of conducting a lottery. A newspaper publishing the New York Stock Exchange bond list publishes a part of the printing used in the lottery known as New York Bond but unless it is published with the intent that it shall be so used, no offense is committed.
The allegation and proof must be that the alleged tickets or other printed matter are in connection with a lottery drawing, a lottery scheme or a lottery device and the allegation must advise and proof must be shown what drawing, *Page 513 scheme or device such connection is with. See Potter v. State,91 Fla. 938, 109 So. 91; Bradley v. State, 79 Fla. 651,84 So. 677; Ex Parte Amos, 93 Fla. 5, 112 So. 289; Whitehurst v. State, 105 Fla. 595, 141 So. 878.
So the judgment should be reversed.
CHAPMAN, J., concurs.
ON REHEARING