Summary
In Goss v. State, 82 Ga. App. 533 (61 S.E.2d 570) cited by counsel for the defendant, the facts show that the tickets were not found on the defendant's person, and not even in the car, but were found underneath the car.
Summary of this case from James v. StateOpinion
33264.
DECIDED OCTOBER 19, 1950.
Maintaining lottery; from Decatur City Court — Judge Philips. July 24, 1950.
James R. Venable, Hubert C. Morgan, for plaintiff in error.
Walter McCurdy, Solicitor, contra.
1. It is never error to refuse to direct a verdict.
2. Where, as here, the evidence upon which the State must rely for a conviction is purely circumstantial, and is insufficient to exclude every reasonable hypothesis save that of the guilt of the accused, a verdict of guilty is not supported by it.
DECIDED OCTOBER 19, 1950.
The defendant, Charlie Goss, was tried in the City Court of Decatur on an accusation in two counts. He was convicted on count one, charging him with maintaining a lottery, and acquitted on count two, charging him with selling lottery tickets. From the evidence it appears: that about noon of February 2, 1950, two police officers in a patrol car followed the defendant, who was driving his automobile with a companion on the seat with him for some distance and finally lost him; that shortly thereafter another police officer located the car in front of a house; that within a few minutes the defendant came out of the house and was searched and arrested; that he had no lottery tickets on his person but did have about $50, mostly in bills; that he stated he had been operating the automobile; that he was under the influence of intoxicants; that about fifty dollars worth of lottery tickets were found on the pavement under the automobile which the defendant had been operating, but none were found in the car; that the defendant had previously entered a plea of guilty to an indictment charging him with operating a lottery. Evidence was offered as to the method of conducting the game and the tickets found in the road were identified as lottery tickets. Upon conviction he filed his motion for a new trial which was amended by adding two special grounds, and the overruling of this motion is assigned as error.
1. The first special ground contends that the trial court erred in overruling the defendant's motion for a directed verdict. It is never error to refuse to direct a verdict. See Weldon v. State, 78 Ga. App. 530 ( 51 S.E.2d 605).
2. Where, as here, a conviction depends upon circumstantial evidence alone, it must be such as to exclude every other reasonable hypothesis save that of the guilt of the accused. Code, § 38-109. Also, the facts upon which it is relied to convict the defendant must be such as are not consistent with innocence. See Davis v. State, 13 Ga. App. 142 (1) ( 78 S.E. 866). In the present case there is no evidence that the defendant sold lottery tickets, and a verdict of acquittal was demanded on this count. As to maintaining a lottery, it is well established that proof of possession of lottery tickets, together with the time, place and manner of explanation of that possession, coupled with other evidence regarding the existence and manner of operating a lottery, is sufficient to sustain a conviction. Holmes v. State, 65 Ga. App. 13 ( 13 S.E.2d 114); Jackson v. State, 79 Ga. App. 149 ( 53 S.E.2d 120); Morrow v. State, 62 Ga. App. 718 ( 9 S.E.2d 699); Williamson v. State, 57 Ga. App. 636 ( 196 S.E. 97); Flynn v. State, 52 Ga. App. 382 ( 183 S.E. 194). But where the possession is not such as to exclude an innocent explanation of the circumstances, a conviction is not authorized. See Chandler v. State, 63 Ga. App. 304 ( 11 S.E.2d 103); Hendricks v. State, 73 Ga. App. 481 ( 37 S.E.2d, 169). Here the lottery tickets were not found in the possession of the defendant. The only evidence to connect the defendant with the crime, the lottery tickets, was found under his car. He may have placed them there himself. His companion may have done so. They may have been lying there when the car was parked, or they may have been placed there while he was in the house. That the money on his person was somewhere in the neighborhood of equal to the total of the lottery tickets found under his car is not such an additional circumstance as will render the evidence sufficient to support the verdict. The evidence is therefore insufficient to exclude every reasonable hypothesis save that of the guilt of the accused.
The remaining special ground of the amended motion for a new trial is not passed upon as it is unlikely to recur upon another trial of this case.
The trial court erred in overruling the motion for a new trial on the general grounds.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.