Irvin v. State

Citations

• 52 Fla. 51

Syllabus

<p>CRIMINAL LAW — DUPLICITY IN INDICTMENTS — THE ISSUE OF DUPLICITY IN AN INDICTMENT CAN NOT BE RAISED AFTER VERDICT BY MOTION FOR NEW TRIAL OR IN ARREST OF JUDGMENT — GAMING TABLE — UNAUTHORIZED SENTENCE.</p> <p>1. When a statute makes either of two or more distinct acts, connected with the same general offence, and subject to the same punishment, indictable as distinct crimes, they may, when committed by the same person at the same time, be coupled in one count and constitute but one offence; and such an indictment will not be subject to the charge of being duplicitous.</p> <p>2. Where an information or indictment is complained of on the ground of duplicity the defendant must make the assault thereon by demurrer, or by motion to quash before verdict rendered. If he delays presenting such issue until after verdict he will be held to have waived the same. He can not raise such issue in a motion for new trial or by a motion in arrest of judgment. .</p> <p>3. There is no merit in the contention that an indictment charging the defendant simply with keeping and maintaining a gambling table is defective because it fails to set forth the nature or kind of table that he is charged with keeping. The statute aims its penalty at the use to which a table is put, or for which it is kept, without reference to the kind or character of such table. Any manner or kind of table kept and maintained for gambling purposes falls within the inhibition of the statute.</p> <p>4. Where the- penalty prescribed by the statute for the commission of a crime is imprisonment in the State penitentiary or a money fine, a primary sentence of imprisonment in the county jail is unauthorized. In such a case a sentence to imprisonment in the county jail can properly be imposed only as an alternative penalty upon failure to pay a money fine imposed.</p> <p>5. Where' there is no error affecting the merits of the trial of a criminal cause that will necessitate the grant of a new trial or vacation of the ver