Opinion
December 4, 1951.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Richard W. Ervin, Atty. Gen. and William A. O'Bryan, Asst. Atty. Gen., for appellant.
Jack Kehoe, Miami, for appellee.
Appellant was informed against in the Criminal Court of Record for Dade County. The pertinent part of the information charges appellant with the possession of coin operated devices which are:
"out of order and can not be operated by the insertion of any piece of money or coin or other object until said machines have been repaired and placed in good working order; that if said machines were repaired and in good working order, they could be used in such a way that as a result of the insertion of any piece of money, coin or other object, said machines would then be adapted for use in such a way that as a result of the insertion of any piece of money or coin or other object, such machines or devices could be caused to operate or may be operated so that by reason of an element of chance or of any outcome of such operation, unpredictable by the user, the user could receive or become entitled to receive a piece of money, credit, allowance or other thing of value; or the user may or could automatically secure additional chances or rights to use such machines, which additional (sic) chances or rights to use such machines are known as free plays."
Predicated on this information a capias was issued and appellee was taken into custody. He petitioned for and was granted a writ of habeas corpus. There was a return denying the allegations of the petition and a motion to discharge the petitioner was granted. This appeal was prosecuted from the latter order.
The point for determination is whether or not the information, the pertinent part of which is quoted above, charges any offense against the laws of the State of Florida, Sections 849.15 and 849.16, F.S.A.
The trial court answered this question in the negative on the theory that the information did not describe the type of machine or coin operated devices condemned by the statute. Appellants admit that the machine must come within the terms of Sections 849.15 and 849.16, F.S.A. In Weathers v. Williams, 133 Fla. 367, 182 So. 764, we held that it was not essential that such machines be used for gaming or gambling to bring them within the condemnation of the act. We held however, that if it was adaptable for use in such a way that the result of the operation involved the element of chance or an unpredictable result so that the user may receive any money or other thing of value the machine is condemned.
Appellant places great reliance on the word "adaptable". While it is admitted that the machines described in the information are outmoded and worthless and will not operate by the insertion of a coin or token, it is contended that they are potentially "adaptable" to gambling use and may be reconditioned and put into use at any time. This may be true, but in response to this contention we are met with the proposition that criminal statutes do not condemn instrumentalities that may be brought into the picture in the future. In the recent case of Deeb v. Stoutamire, Fla., 53 So.2d 873, a majority of this Court refused to condemn a coin machine that returned nothing to the operator. It was not an obsolete machine such as is involved in this case.
A reading of the information shows that the machine in question cannot now be operated by the insertion of a coin. If they are repaired by replacements or other alterations they may be brought within the condemnation of the act, but the information does not charge defendant with committing a crime in the future. An act which attempts to predicate a crime on future acts or contingencies or on the taking place of some future event cannot be upheld.
It follows that the judgment appealed from must be and is hereby affirmed.
Affirmed.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., concur.