Opinion
34261.
DECIDED OCTOBER 23, 1952.
Certiorari; from Fulton Superior Court — Judge Andrews. June 27, 1952.
Howard, Tiller Howard, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, B. B. Zellars, C. O. Murphy, contra.
There being sufficient evidence to authorize the Judge of the Criminal Court of Fulton County, sitting without the intervention of a jury, to find the defendant guilty of operating a lottery, the Judge of the Superior Court of Fulton County properly denied her petition for certiorari.
DECIDED OCTOBER 23, 1952.
Mrs. R. C. Drummond was tried in the Criminal Court of Fulton County under an accusation charging her with keeping, maintaining and operating on October 16, 1951, a lottery in Atlanta, Fulton County, and Judge Chas. G. Bruce, without the intervention of a jury, found her guilty as charged. Mrs. Drummond applied to the Superior Court of Fulton County for the writ of certiorari, and her petition was denied by the court on June 27, 1952. Mrs. Drummond, by bill of exceptions to this court, assigned error on this judgment. Her sole assignment of error is that her conviction was predicated on circumstantial evidence which was not sufficient to authorize her conviction of the offense charged. On the trial, police detective Boone testified substantially as follows: "I had occasion to arrest Mrs. R. C. Drummond on the 16th day of October, 1951. . . My partner and I went to Boulevard and Ponce de Leon . . and I got out of the car and crossed the street to a little restaurant . . and my partner parked the car on Boulevard below Ponce de Leon, and I remained in the restaurant for 15 or 20 minutes, and noticed a 1950 Cadillac couple . . pull into the parking lot in the rear of the bank and there was a negro standing back there and when the car pulled in it went up to the brick wall at the end of the lot. The negro's name was Raymond Stephens and he went from the back of the lot to the side of the car and Mr. Sikes started off in his car and I walked across the street and the negro man saw us and broke and ran and I was almost to the car at the time and I opened the car door, and [I found] lying on the seat between Mr. Watson and . . the defendant was a white envelope . . . The envelope was sealed at the time on the front seat between the driver (Billy Lee Watson) and the passenger of the car (defendant)." The envelope contained a quantity of 8 original lottery books. It was about 1 p. m. when the witness found the defendant and Watson. The witness said he had seen both the defendant and Watson together on prior occasions. We "arrested the same negro they were talking to ten days before that for lottery, Raymond Stephens . . . After I arrested Mrs. Drummond and Watson I apprehended Raymond Stephens and he is here today."
Raymond Stephens testified substantially as follows: The witness worked for a dry cleaning establishment, which took him about town. "I have been arrested for lottery once . . I know Billy Lee Watson and have known him for two years. I also know Mrs. R. C. Drummond and have known her about the same length of time. I have had transactions in the lottery with Mrs. R. C. Drummond and Billy Lee Watson, that is I gave them some numbers at one time when they were together, I mean numbers written in the lottery. I gave them the numbers at various places, sometimes on Auburn Avenue, sometimes over on Edgewood Avenue and sometimes on Ponce de Leon and Boulevard. I gave them to them at different places. Sometimes they would be together in the car. I have given Mrs. Drummond some by herself. She has picked them up twice by herself. I have given numbers to Watson and Mrs. Drummond when they were together maybe three or four times and they were numbers I had written that they were picking up from me. On that particular day the officers arrested them . . I was supposed to buy a car . . and I was talking with him that morning over the phone about nine o'clock and he wanted to know where he could see me and I told him any place would be all right and he said he would be at Boulevard and Ponce de Leon about 11:30 or 12. So I met him there. . . When he came there, he and Mrs. Drummond and I were talking and while we were talking Mrs. Drummond said `there they come again.' So Mrs. Drummond told me to run. . ." The witness ran.
The defendant made a statement and denied that she was guilty of the offense, and denied that she told Stephens to run when she saw the officers coming.
There are no special assignments of error and the only question presented is whether or not the judge of the superior court erred in denying the application of this defendant for the writ of certiorari because the evidence adduced upon her trial in the Criminal Court of Fulton County was insufficient to authorize her conviction for keeping, maintaining and operating a lottery as charged, such evidence being entirely circumstantial and not excluding every other reasonable hypothesis save that of her guilt. It was shown that there was in operation in said city, State and county, on said day, a form of lottery known as the "numbers game." It appeared from the evidence that the defendant was in the Cadillac car driven by Billy Lee Watson, and when this car drove into a parking lot near the intersection of Ponce de Leon and Boulevard, and near a branch of the Bank of Atlanta, a negro named Raymond Stephens came over to the car and engaged in conversation with Watson and the defendant. Detectives Boone and Sikes, who were nearby, started towards the parking lot and this car, when Stephens ran off and had to be caught. The officers found in this car, on the front seat, between Watson and the defendant, an envelope containing 8 original lottery books. These officers arrested Mrs. Drummond, Watson and Stephens. On the trial Stephens testified to the fact that while on this particular occasion he was talking to Watson relative to a car he had bought from Watson, he had before then delivered lottery tickets to Watson and to Mrs. Drummond, tickets which he had written and which they had picked up. It appeared that they had done this on several occasions and made deliveries to them at several places in said county, sometimes to Watson alone, sometimes to the defendant alone and sometimes to both together. He had known the defendant and Watson around two years. Conceding but not deciding that the evidence was not sufficient, as contended by the plaintiff in error, to show that this defendant was engaged in the operation of a lottery on October 16, 1951, when she was arrested and on which date she was charged with having committed said offense, there was evidence that within the statutory time (two years), she had been engaged in the operation of a lottery. "The State is not confined to the date alleged in the accusation in proving the crime, but may prove it as of any date within the period of limitations. . . When the accusation charges the offense generally, the State need not rest its case on proof of a single transaction, but may prove or attempt to prove any number of transactions of the character charged in the accusation and included within its terms." White v. State, 9 Ga. App. 558 ( 71 S.E. 879); Daniel v. State, 83 Ga. App. 733 ( 64 S.E.2d 690).
The judge, sitting without a jury as a trior of facts, was authorized to find that this defendant, along with Watson, had been engaged in the operation of a lottery known as the numbers game, which is a misdemeanor (Code, § 26-6502), on several occasions within two years (Code, § 27-601(4)).
The testimony of Stephens alone would suffice to convict Mrs. Drummond. The offense was a misdemeanor and there was no need that it be corroborated, and Code § 38-121 was not applicable. See Parsons v. State, 43 Ga. 197; Martin v. State, 17 Ga. App. 372 ( 86 S.E. 945); Branch v. State, 46 Ga. App. 66 ( 166 S.E. 685); and Johnson v. State, 57 Ga. App. 813 ( 197 S.E. 61). Besides, the testimony of Stephens was corroborated.
It follows that the Judge of Fulton Superior Court did not err in overruling the defendant's petition for certiorari.
Judgment affirmed. Townsend and Carlisle, JJ., concur.