Opinion
28668.
DECIDED JANUARY 30, 1941.
Certiorari; from Fulton superior court — Judge Humphries. June 12, 1940.
C. G. Battle, for plaintiff in error.
Bond Almand, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
Evidence of mere presence at the place where the offense is being committed, there being nothing to show the defendant's participation in the illegal act, is insufficient to authorize conviction.
DECIDED JANUARY 30, 1941.
1. The evidence shows that the officers entered a house where all the devices for operating a lottery were found, and that such devices clearly proved that the crime was in progress when the officers arrived. Then the operation ceased. The defendant was first seen by the officers in a room adjoining the room where the game was operated. This was the only evidence tending to connect her with the offense. This was insufficient. The mere presence of one where a crime is being committed without any further evidence to show participation in it, directly or indirectly, is insufficient upon which to base a conviction. Reese v. State, 157 Ga. 766 ( 122 S.E. 195); Pirkle v. State, 11 Ga. App. 98 ( 74 S.E. 709).
2. The court erred in overruling the certiorari.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.