Opinion
June 17, 1952. Rehearing Denied July 15, 1952.
Appeal from the Criminal Court of Record for Broward County, W.T. Kennedy, J.
J.B. Patterson, Fort Lauderdale, for appellant.
Richard W. Ervin, Atty. Gen., Leonard Pepper and Boone D. Tillett, Jr., Asst. Attys. Gen., for appellee.
An information was filed against the appellant and one Sigmund B. Stocki, charging that they did "unlawfully and feloniously have, keep, exercise and maintain a house, room or shelter for the purpose of gaming and gambling," as denounced by Section 849.01, Florida Statutes, F.S.A. Upon the separate trial of the appellant, which appears to have followed that of Stocki, counsel for the State moved in open court for leave to amend its Bill of Particulars to state that "it expects to prove that the defendant, Donald Foote, acted as doorman and aided and assisted in the operation of gambling games operated in the room described in the information, but did not actually participate personally in the game of chance operated in the same room," and the case against the appellant was tried on this issue without objection by the appellant. From a judgment of conviction this appeal has been perfected.
The State's evidence was adequate to sustain its charge against the appellant, as delineated in its amended Bill of Particulars, but no proof was offered as to the agency of the appellant; and the appellant here contends that the State was required to prove the agency of the appellant in order to sustain the charge as made. This contention cannot be sustained. Section 849.02, Florida Statutes, F.S.A. provides that "Whoever acts as servant, clerk, agent or employee of any person in the violation of Section 849.01 shall be punished in the manner and to the extent therein mentioned." It was held in McBride v. State, 39 Fla. 442, 446, 22 So. 711, 713, that "The result of the two sections [Sections 849.01 and 849.02], 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." It was not then, incumbent upon the State to prove the agency of the appellant in order to make a case for submission to the jury. See Miller v. State, 131 Fla. 398, 180 So. 16.
The other questions presented by the appellant have been carefully considered, and no reversible error has been found.
Accordingly, the judgment appealed from should be and it is hereby
Affirmed.
SEBRING, C.J., MATHEWS, J., and REVELS, Associate Justice, concur.