Opinion
September 26, 1950.
Appeal from the Criminal Court of Record, Polk County, B.L. Durrance, J.
D.C. Laird, Lakeland, and Marvin B. Woods, Lakeland, for appellant.
Richard W. Ervin, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.
The County Solicitor of Polk County, Florida, filed an information consisting of seven counts against the appellant, Homer White, charging him with lottery violations. He was placed on trial before a jury in the Criminal Court of Record of said County and acquitted by the jury's verdict on six counts, but found guilty under the 7th count. The trial court denied a motion for a new trial, adjudged the appellant White guilty under the 7th count of the information and sentenced him to pay a fine of $500, and in default thereof that he be confined in the State Prison at hard labor for a period of one year. From this judgment White appealed.
Adduced into evidence, over seasonable objections of counsel for the defendant-appellant, were described bolita tickets obtained in the appellant's place of business at Bartow. These tickets were obtained as a result of a search warrant and seized by the searching officer in the appellant's place of business. Counsel for the appellant objected to the introduction of the bolita tickets into evidence on the ground that they were not constitutionally obtained — in that the affidavit and search warrant under which the search and seizure were made failed to conform to our Federal and State Constitutions, applicable statutes, and adjudications of the Supreme Court of Florida and of the Supreme Court of the United States. Likewise, motions to suppress were made by appellant's counsel during the progress of the trial but were denied by the trial court.
The affidavit for the search warrant is viz.: "Before me, Glen Darty, Justice of the Peace in and for the Third District for Polk County, State of Florida, personally appeared James F. Whidden, a Sheriff's Deputy, of Polk County, who being by me first duly sworn, deposes and says that he believes and has good reason to believe that in a certain building known as White's Feed Store, 165 South Wilson Avenue, Bartow, Polk County, Florida, gambling and sale of lottery tickets, commonly known as and called `Bolita', is being conducted by a person or persons whose names are to affiant unknown, contrary to the laws of the State of Florida; and that the said premises are being used for the operation of a gambling room contrary to the laws of this State; and that affiant's reason for his belief is that he has learned from an investigation as Deputy Sheriff that there is in said building at said address numerous tokens, charts, tickets, books or other paraphernalia, commonly used in the conducting and carrying on of such lotteries, gambling and unlawful games of chance, and that affiant has information from other persons making undercover investigations that unlawful wagering and betting is actually being conducted within said building."
The affidavit fails to state facts or sufficient reasons upon which the officer believed, or had reason to believe, that the laws were being violated by the appellant. See De Lancy et al. v. City of Miami, 43 So.2d 856; North v. State, 159 Fla. 854, 32 So.2d 915; Church v. State, 151 Fla. 24, 9 So.2d 164; Cooper v. State, 106 Fla. 254, 143 So. 217; Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212. Courts are powerless to take from or to deny to a citizen rights guaranteed or vouchsafed to him by our organic law.
The judgment appealed from is reversed and a new trial awarded.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.