Opinion
31720.
DECIDED OCTOBER 9, 1947.
Certiorari; from Fulton Superior Court — Judge Almand. May 28, 1947.
James R. Venable, Frank A. Bowers, for plaintiff in error.
John I. Kelley, Solicitor, Paul Webb, Solicitor-General, J. Walter LeCraw, contra.
1. The evidence sustains the allegations of the accusation.
2. Where, as here, an accusation alleges that the defendant was a bookmaker, soliciting bets as to what efforts a ballplayer would make and what results he would obtain when he came to the bat, it sufficiently alleges a scheme or device for the hazarding of money.
3. It is always permissible for a witness to explain his conduct where, as here, he does not detail any prejudicial matter.
DECIDED OCTOBER 9, 1947.
T. L. Grant was convicted in the Criminal Court of Fulton County on an accusation which materially charged: That the defendant "on the 21st day of August 1946, did unlawfully keep, maintain, employ and carry on a scheme or device for the hazarding of money or valuable things, known as and designated as `bookmaking' or `baseball games;' to wit: The said accused did solicit, wager, make and accept bets of money during the progress of baseball games being played at Ponce de Leon Park, Ponce de Leon Avenue, said State and county. Said accused did then and there give odds of four dollars to one dollar that the baseball when batted by the baseball player then serving as the batter, would not be a fly-ball to the outfield, and if the said accused, the bookmaker and operator of the scheme, loses his bet, he then pays five dollars, and if he wins his bet, he then retains and keeps the dollar placed by the person who put up the said dollar who can not and does not get his money back." When arraigned, the defendant filed his general demurrer on the ground that the accusation set out no criminal offense against him under the laws of Georgia. This demurrer was overruled. The defendant made application to the Superior Court of Fulton County for certiorari, which writ was granted. On the hearing the superior court overruled the certiorari. The defendant assigned error upon the ruling ruled the certiorari. The defendant assigned error upon the ruling of the superior court.
The State introduced an expert ballplayer, who testified as to the method of playing a baseball game of the character in question carried on at Ponce de Leon Park in Atlanta, Fulton County, Georgia. He described in detail "a fly-ball to outfield" and the plays that were not "fly-balls to the outfield" and that a bet to the effect that it would not be to the outfield would be a nine to one chance.
The State introduced another witness who testified that on the date named in the accusation he was a police officer in the City of Atlanta; that he had been a police officer for 26 years; that he was assigned to Ponce de Leon Baseball Park, Atlanta, in an effort to break up gambling in the bleachers in Ponce de Leon Baseball Park; that he had been there before and had seen the defendant whom he described as being the person who is described in the accusation. This defendant was tried at the same time as the other defendant described as Number 2 man; they were on the walkway and stood up with other men in the walkway; they had money in their hands and they made the bets; they were, "ballyhooing them, hollering four to one to the outfield." The policeman saw the defendant take money and bets, receive money on August 4, August 19, August 20 and August 21. Both of the defendants were standing in the bleachers, the defendant here and the other defendant. After they took the bets and the players came to the bat, the defendant squatted down so the people behind him could see what was being done. They cried out, the defendant and the other defendant, "four to one to the outfield" as the batters would come to the bat. If the batter hit the ball, a fly-ball to the outfield, the defendant would pay the man the four to one bet. If the ball did not fly to the outfield, he kept the money bet. The people sitting around the defendant would turn the dollar over to him. If the person giving the dollar won, the said person would receive five dollars back. That practice continued all through the game, until the last batter was out. The defendant solicited bets of the people there by offering four to one before a batter came to the bat. The defendant was not secretive about placing the bets. He was "wide open." One could hear them soliciting bets twenty-five or thirty feet away and he occupied the same place each night the witness was there. The witness further testified that in the baseball game the players were hired because of skill and professional ability as players. There was another policeman there who testified practically to the same effect as the immediate preceding witness did.
The defendant in his statement said he had been to the ball park and had lost some money out there, but that he had not been gambling anything like the police officer said he had. And that further, the police officers were too far away to see him if he had been gambling, as they said. One of the police officers, recalled, further testified that he arrested the defendant and the person who was with him, and that when he arrested Mr. Grant he had one hundred twenty-four ($124) dollars on him and that the witness had been as close to him during the time he had observed the gambling device as two or three feet; that on one occasion he walked up to within a foot of the defendant and the defendant remarked, "I'm glad you came out. You are going to give me luck." At that time the defendant was the "bookie." He had money in his hand and was placing and soliciting bets. The defendant is known to the police force as a "bookie." The witness on cross-examination testified that he did not get the names of any persons as witnesses. He thought he would know some of them by their faces if they were shown to him. That is the place where anyone can bet any way they want to; that some of them go out there with ten dollars and run it up; some go out there with a thousand dollars and come back with nothing.
1. We have set out the evidence to show that it amply sustains the conviction under the allegations of the accusation.
2. This brings us, then, to determine whether or not the court erred in overruling the general demurrer. In other words, whether the accusation set out a criminal offense under the Code, § 26-6502, which reads as follows: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable things, shall be guilty of a misdemeanor." A scheme or device for the hazarding of money as charged in this accusation has three essentials: First, consideration; second, prize; third, chance. See Williams v. State, 65 Ga. App. 843 ( 16 S.E.2d 769), and citations therein. There are other decisions to this same effect. Able counsel argue earnestly and enthusiastically that a game of baseball is a game of skill and that the essential of chance is not in it. While it is true that the players in a game of baseball are employed for their skill, and members of this game reach a high proficiency in skill, and it is a noble sport, but to set up a scheme and device for the hazarding of money on the outcome of such game as alleged in this accusation or as to any particular phase thereof by outsiders comes within the provisions of the statute thereon. While not in an identical situation, we think this court dealt with a very similar and analogous situation in Lewis v. State, 55 Ga. App. 160 ( 189 S.E. 566), in which Judge MacIntyre, speaking for the court, said: "Our view is that there was a large element of chance in the `device' the defendant is accused of conducting, and under the agreed statement of facts we are of the opinion that the jury was warranted in finding that he was guilty of violating the Code, § 26-6502. The element of Skill entered into the playing of the marbl-jax table, described in Sparks v. State, 48 Ga. App. 498 ( 173 S.E. 216); yet this court held that it was a game of Chance, saying: "The fact that skill or proficiency might enter into the operation of the machine makes no difference;' and quoting from Meyer v. State, 112 Ga. 20 ( 37 S.E. 96, 51 L.R.A. 496, 81 Am. St. R. 17), as follows: `Any scheme or device operated by a person, by which one participating therein might either lose the money invested or get more than his money's worth, the operator retaining the money so lost, is a scheme or device for the hazarding of money, within the meaning of the Penal Code above quoted.'"
In 135 A.L.R. 183 (note on game of chance or skill) dd Racing, it is said: "Although the authorities are divided as to whether racing constitutes a game within the meaning of anti-gambling statutes, the prevailing view seems to be that racing falls within the purview of such statutes. Annotation in 45 A.L.R. 998." In 135 A.L.R. 121 (same note as above) e. Baseball, it is said: "Baseball is usually classed as a game of skill as distinguished from a game of chance . . however, wagering or betting on a game of baseball may constitute a game of chance as between those who wager or bet." In the exhaustive note discussion of games of chance in Section IV, pages 187, 188 of the same authority, this matter is further elaborated as follows: "It has been held that a wager is not a game but a bet of stakes upon the results of a game . . however, a game of chance may be found under certain circumstances to be played between persons who wager or bet among themselves upon the outcome of a game although not actually participating in the game itself, which may or may not have been inaugurated primarily for the purpose of affording an opportunity for wagering or betting, even though the game is a game of skill between the players who participated therein."
However, as between the members of the baseball team, they may be engaged in a contest of skill, but as to the spectators who wager upon the outcome of the results of the particular batting results, it is, under our statute, a game of chance, where the scheme and device is as set forth in the accusation herein and where it is sustained by the proof. We think this is true even construing Code, §§ 26-6501 and 26-6502 together. Counsel for the defendant call our attention to the case of Russell v. Equitable Loan Security Co., 129 Ga. 160 ( 58 S.E. 881, 12 Ann. Cas. 129), and cit. We do not think the facts in that case are applicable to the one now before us and that decision is not controlling. In support of this decision see Sable v. State, 48 Ga. App. 174, 175 ( 172 S.E. 236); Sparks v. State, 48 Ga. App. 498, 502 ( 173 S.E. 216). It therefore follows under what we have said that the court did not err in overruling the demurrer to the accusation.
3. Error is assigned because the court, over objections of the defendant, allowed a police officer to testify: "I was detailed to the baseball park to try to break up gambling in the bleachers there." This assignment of error is without merit. This testimony explains the conduct of a witness only. Harris v. State, 191 Ga. 555 (6) ( 13 S.E.2d 459).
The court did not err in overruling the certiorari for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.