Opinion
32834. 32866.
DECIDED FEBRUARY 9, 1950.
Maintaining scheme for hazarding money; from Savannah City Court — Judge Heery. October 27, 1949, November 14, 1949.
Julius F. Fine, for plaintiffs in error.
Andrew J. Ryan, Solicitor-General, Sylvan A. Garfunkel, Herman W. Coolidge, contra.
1. In the absence of timely written request, a charge in the language of Code § 38-420 that, "a confession alone, uncorroborated by any other evidence, shall not justify a conviction," is not erroneous for failing to instruct the jury as to what amount of additional corroboration shall be sufficient, as the jury are generally the judges of the degree of corroboration necessary to authorize a conviction, there being proof of the corpus delicti.
2. Proof of the corpus delicti sufficiently corroborated the confessions of the defendants on the charge of selling bolita tickets, under the evidence in these cases.
DECIDED FEBRUARY 9, 1950.
These two cases, which involve substantially the same issues, are being considered together. The defendants in each were tried and convicted in the City Court of Savannah on accusations charging them with maintaining, employing and carrying on a certain scheme and device for the hazarding of money known as bolita. In the former case the State's witness testified that on a search of the house of Willie Mae Figures he found a large quantity of bolita tickets and change in the defendant's dresser, and that her codefendant, Raymond Huff, who was also present, threw down additional tickets and money from his pocket; that both defendants admitted they were selling tickets for the defendant, Willie Mae. These admissions were later denied in the defendants' statements to the jury. Both defendants were found guilty by the jury trying the case, and the plaintiff in error here, Willie Mae Figures, filed her motion for a new trial on the general grounds, amended by adding two special grounds. To the judgment of the trial court overruling the same, she brings error.
In the second case the evidence authorized the jury to find that the defendant, Ben James, was arrested while trying to make a sale of bolita tickets to an unidentified woman in an automobile garage; that a search of the premises revealed a book of tickets hidden in a stove in the back where the defendant had gone on seeing the police officers approaching; that other tickets and cash were found in his pockets and he admitted them to be his. In his statement to the jury the defendant claimed to have bought the tickets found on his person, and denied knowledge of those found on the premises. The jury returned a verdict of guilty, and the defendant filed his motion for a new trial, amended by adding two special grounds. To the judgment of the court overruling this motion, he brings error.
Ground 1 of the amended motion for a new trial of Willie Mae Figures, and grounds 1 and 2 of the amended motion for a new trial of Ben James complain of identical charges of the court as to the amount of evidence necessary to corroborate a confession in order to justify conviction. The court charged Code § 38-420 in its entirety, the part complained of being, "a confession alone, uncorroborated by any other evidence, shall not justify a conviction." This is not too indefinite, in the absence of specific request to charge more fully on the amount of corroboration necessary. In Griner v. State, 121 Ga. 614 (5) ( 49 S.E. 700), it was held that a charge to the effect that proof of the corpus delicti may be, but is not necessarily, a sufficient corroboration of a confession of guilt, and that the jury are the judges of what amount of corroboration shall be necessary, correctly stated this principle of law. In Williams v. State, 199 Ga. 504, 510 ( 34 S.E.2d 854), the court held: "The instruction, `a confession alone, uncorroborated by any other evidence, shall not justify a conviction,' was not erroneous, misleading, or confusing, for not giving in connection therewith any rule to test the degree of corroboration, or that the jury were the judges of the sufficiency of corroboration. The above excerpt is a quotation from the last sentence of section 38-420 of the Code. This entire section was given in charge, and if additional instructions were desired, a timely and proper request therefor should have been made." These grounds of the amended motion for a new trial are therefore without merit.
2. Ground 2 of the amended motion in Case No. 32834, which is considered with the general grounds, complains that the corroborative evidence did not establish the corpus delicti sufficiently to amount to corroboration of the defendant's confession. On the defendant's dresser were found 136 tickets, together with $46.36 in change. Another book of tickets and $29.30 were found on the person of her codefendant who also stated that he was "just trying to help Willie Mae sell a few tickets." In both cases the ticket books and money were found, either upon the person of the defendant or concealed in a location suggesting the defendant's agency. In Allen v. State, 67 Ga. App. 269 ( 19 S.E.2d 843), the discovery of lottery paraphernalia in the home of the defendant was held to be sufficient corroboration of a confession, although the latter was repudiated at the time of trial, and the defendant claimed that the equipment had been brought in by her boarders while she was sick and away from home. Location of tickets under the apparent custody of the defendant was held to be sufficient corroboration in Ivey v. State, 67 Ga. App. 268 ( 19 S.E.2d 844), Mack v. State, 65 Ga. App. 812 ( 16 S.E.2d 519), and numerous other cases. It must therefore be concluded that the location of the ticket books and money under circumstances as testified by the State's witnesses in these cases was sufficient corroboration of the confessions in each case to authorize the jury to return verdicts of guilty.
The trial court did not err in overruling the motions for new trials in each case. Judgments affirmed. MacIntyre, P.J., and Gardner, J., concur.