Franks, Joan M.

English

University of Miami School of Law

University of Miami Law Review Volume 9 Number 3 Miami Law Quarterly Article 14 5-1-1955 Evidence -- Federal Wagering Tax Stamp -- Abatement of Gambling Nuisance Joan M. Franks Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Joan M. Franks, Evidence -- Federal Wagering Tax Stamp -- Abatement of Gambling Nuisance, 9 U. Miami L. Rev. 363 (1955) Available at: https://repository.law.miami.edu/umlr/vol9/iss3/14 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. CASE NOTESmaster's recommendations should be set aside only upon good cause,even though the findings were advisory. The court, in the instant case,interpreted this decision to mean that the reference which instructedthe master to make findings of fact as well as conclusions of law, in effect,usurped the court's function. The court held that this was tantamountto permitting the master to render the final decision in the case, since itleft the chancellor powerless to act where there is ample evidence tosustain the findings of a master. This, the court concluded, could notbe done over the objection of one of the parties.Perhaps the court erred in its decision through a misinterpretation ofthe holding in Harmon v. Harmon. The weight of authority is that areference by a court of chancery to a master may be made over theobjection of the parties, but where a party objects to such a reference,the master's report is to be considered as advisory rather than conclusive.It is the opinion of the writer that the Harmon case is not in oppositionto the weight of authority. Therefore, there is no apparent precedentfor the decision of this court in quashing the order of reference on thegrounds stated.DONALD STUART ZUCKERMANEVIDENCE-FEDERAL WAGERING TAX STAMP-ABATEMENT OF GAMBLING NUISANCEThe state sought to enjoin, as a nuisance, an alleged lottery andbookmaking business. The state's only evidence was the fact that thedefendants had purchased a Federal Wagering Occupational Tax Stampand had paid the tax of 10%, on their gross income from gambling. Held:Mere purchase and possession of a gambling tax stamp is not sufficientevidence to establish the maintenance of a gambling house. Boynton v.State, 75 So.2d 211 (Fla. 1954).A Florida statute1 makes any place or building wherein gambling isengaged a nuisance and subject to abatement.2 Even the early commonlaw held that keeping a gambling house was a public nuisance. 3 Theeffect of the statute is that it makes this conduct a nuisance per se,4 toenjoin which it is only necessary to prove commission of the act.- As aI. FLA. STAT. § 823.05 (1953).2. FLA. STAT. § 64.11 (1953).3. Bowden v. Nugent, 26 Ariz. 485, 226 Pac. 549 (1924); State v. Vaughan,81 Ark. 117, 98 S.W. 685 (1906); Ehrlick v. Comm., 125 Ky. 742, 102 S.W. 289(1907); Roberts v. Reille, 50 NY.S.2d 196 (N.Y. Munic. Ct. 1944); People v. Langan,196 N.Y. 260, 89 N.E. 921 (1909); Ex Parte Allison, 99 Tex. 455, 90 S.W. 870 (1906).4. Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801 (1927); State v. 30Club, 124 Mont. 91, 219 P.2d 307 (1950).5. Engle v. Scott, 57 Ariz. 383, 114 U.2d 236 (1941); People v. Lim, 18 Cal. 2d872, 118 P.2d 472 (1941); Robinson v. \Vestman, 224 Minn. 105, 29 N.W.2d 1 (1947).MIAMI LAW QUARTERLYresult, the state must merely establish the fact that the defendant ismaintaining a gambling house. This may be shown by circumstantialevidence,0 as well as by direct evidence, 7 providing a casual connectionbetween the evidence and the defendant is established.8The problem then presents itself as to what weight should be placedupon the purchase and possession of the tax stamp as evidence of gambling.There are only four other cases in the United States in which the gamblingtax stamp has been used as evidence of violation of gambling laws, andthree of them can be distinguished on their facts.' The remaining caseis a Florida decision' 0 which arose prior to the passage of the statute"making the stamp prima facie evidence of gambling. The court heldthe tax stamp not sufficient in itself to show that the holder was a commongambler,' 2 indicating that, absent a statute of the aforementioned type,the stamp is not prima facie evidence.Due to the paucity of law on the point, it would appear that thecourts would have difficulty in deciding what evidentiary weight to give tothe gambling tax stamp. Some courts have indicated that what has beenpreviously held with reference to a Federal Liquor License is equallyapplicable to the Federal Wagering Stamp.'3 Therefore it is logical toassume that when confronted with the problem, and with no other lawon the point, the courts will follow the law with regard to liquor licenses.It is established that the fact that accused had paid the special Federaltax as a liquor dealer and had obtained a license is admissible in evidence' 46. People v. Renek, 105 Cal. App.2d 277, 233 P.2d 43 (1951): People v.Gompertz, 103 Cal. App.2d 153, 229 P.2d 105 (1951); People v. Ross, 100 Cal.App.2d 116, 223 P.2d 85 (1950); People v. Barnhart, 66 Cal. App.2d 714, 153 P.2d214 (1944); People v. Newland, 15 Cal.2d 678, 104 P.2d 778 (1940); People v.Lewis, 91 Cal. App.2d 346, 204 P.2d 919 (1949); Comm. v. Stoe, 167 Pa. Super 300,74 A.2d 526 (1950).7. People v. Gompertz, supra note 6; People v. Ross, supra note 6; People v.Barnhart, supra note 6; People v. Newland, supra note 6.8. People v. Gompertz, see note 6 supra; People v. O'Brian, 37 Cal. App.2d 708,100 P.2d 367 (1940); People v. Fisk, 32 Cal. App.2d 26, 89 P.2d 142 (1939); Peoplev. Rabalete, 28 Cal. App.2d 480, 82 P.2d 707 (1938).9. riggs v. State, 73 So.2d 382 (Ala. App. 1954) (held that a statute providingthat the possession of a gambling tax stamp was prima facie evidence of violation ofgambling aws was not an unconstitutional ex post facto law as applied to defendants).Acklen v. State, 267 S.W.2d 101 (Tenn. 1954). The gambling stamp was not theonly evidence in this case. There was also testimony of officers, defendants'confessions, and wagering tax returns. Deitch v. Chattanooga, 195 Tenn. 245. 258S.W.2d 776 (1953) (city ordinance made it unlawful to possess Federal gamblingstamp).10. Rodriguez v. Culbreath, 66 So.Zd 58 (Fla. 1953).11. FLA. STAT. § 849.051 (1953) makes possessing or paying tax for Federalgambling stamp prima facie evidence against any person holding same in any prosecutionof such person for violation of gambling laws of this state.12. Rodriguez v. Culbreath, see note 10 sura.13. Pompano orse Club v. State, see note 4 sutra. Acklen v. State, see note 9supra. Deitch v. Chattanooga, see note 9 sumra.14. King v. State, 92 Okla. Cr. 389, 223 P.2d 773 (1950); Nickols v. State,76 Okla. Cr. 178, 135 P.2d 352 (1943); Brooksher v. State, 251 P.2d 200 (Okla. 1952):Ellington v. State, 94 Oksa. Cr. 26, 229 P 2d 902 (1951v; State v. Kallas, 97 Utah 492,94 P.2d 414 (1939).CASENOTESto show the maintenance of a liquor nuisance.'5 The probative value ofsuch evidence is to be determined in connection with all the otherevidence in the case, ' and, in the absence of a statute making possessionof a license prima facie evidence of guilt,'" the mere issuance of such alicense is not sufficient to sustain a conviction. 18At the time the instant case was decided, there was a statute'9 whichmade the purchase and possession of the gambling stamp prima facieevidence of violation of the gambling laws. It is interesting to note thatthis statute was not even mentioned in this case, although there was anexcellent opportunity to do so, and its logical application would haveresulted in an opposite decision. However, it is probable that the courtrefrained from mentioning the statute in anticipation of the case,20 whichonly a few months later, held the statute unconstitutional. Thus thecourt appears to have followed the law with regard to liquor licenses.JOAN M. F RANKSCORPORATIONS-CUMULATIVE VOTING-STAGGERSYSTEM-UNCONSTITUTIONALA stockholder sought to have declared unconstitutional an Illinoisstatute' which provided that a corporation could stagger the terms ofoffice of its directors by designating different classes of directors who areelected at different intervals. Held, that although the Illinois Constitution,providing for cumulative voting, did not expressly prohibit director classifica-tion, the statute could not be upheld since it defeated the purpose ofcumulative voting. Wolfson v. Avery, Illinois Supreme Court, No. 33563,April 15, 1955.*Cumulative voting is a method by which a stockholder, instead ofvoting his shares for each of the directors to be elected, is allowed to castthe whole number of his votes for one director or to concentrate or distribute15. State v. Kallas, see note 14 supra.16. Bishop v. State, 90 Okla. Cr. 410, 214 P.2d 971 (1950); White v. Comm.,107 Va. 901, 59 S.E. 1101 (1907).17. For example, ARK. STAT. § 48-49 (1947).18. Appling v. State, 88 Ark. 393, 114 S.W. 927 (1908); Peyton v. State,83 Ark. 102, 102 S.W. 1110 (1907); Liles v. State, 43 Ark. 95 (1884),19. FLA. STAT. § 849.051 (1953).20. Jefferson v. Sweat, 76 So.2d 494 (Fla. 1954)(held statute unconstitutionalon ground that mere possession of the stamp cannot be prima facie evidence thatdefendant has been guilty of a crime when there is no evidence of any kind that acrime has been committed).1. ILL. CODE ANN. § 157.35 (1951): Providing that when a corporation shallhave nine or more directors they may be divided into classes.2. ILL. CONST. ART. XI, sec. 3 (1870): Every stockholder shall have the rightto cumulate his vote. ILL. CODE. ANN. § 157.28 (1951).*A rehearing of this case is anticipated.

Evidence -- Federal Wagering Tax Stamp -- Abatement of Gambling Nuisance

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Evidence -- Federal Wagering Tax Stamp -- Abatement of Gambling Nuisance

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