Opinion
41026.
DECIDED NOVEMBER 19, 1964.
Operating bolita game. Savannah City Court. Before Judge Oliver.
B. Clarence Mayfield, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor, Sylvan A. Garfunkel, Tom A. Edenfield, contra.
The defendant was convicted under an accusation charging him with maintaining, etc., a scheme and device for the hazarding of money, to wit: Bolita. Thereafter, his motion for new trial, based on the usual general grounds only, was overruled and error is assigned on such judgment adverse to him as well as on the judgment of the trial court overruling a motion for a judgment non obstante veredicto. Held:
1. Under the decision of the Supreme Court in Wilson v. State, 215 Ga. 775 ( 113 S.E.2d 607), the trial court did not err in overruling the defendant's motion for judgment non obstante veredicto.
2. The evidence adduced on the trial of the case was wholly circumstantial. The defendant was followed to a public "lounge and restaurant" by two detectives; that a few minutes after the defendant went in the two detectives went in and found the defendant and approximately eight to twelve other persons present; that they saw the defendant make a gesture with his hand; and that they located a "tally sheet" some five feet from the defendant. The detectives testified that they did not see the tally sheet leave the defendant's hand or hit the floor, although it was located in the approximate position it would have landed had the defendant thrown it when he moved his hand. There was no evidence placing the defendant in possession of the tally sheet, nor was it in a location (e.g. the defendant's home), where possession would be presumed. Under decisions exemplified by Hendricks v. State, 73 Ga. App. 481 ( 37 S.E.2d 169), and Gross v. State, 82 Ga. App. 533 ( 61 S.E.2d 570), the conviction was not authorized and the judgment overruling the defendant's motion for new trial must be reversed.
Judgment reversed. Hall and Russell, JJ., concur.