Opinion
37197.
DECIDED JUNE 23, 1958.
Lottery; petition for certiorari. Fulton Superior Court. Before Judge Pharr. April 7, 1958.
Joe Salem, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, Robert O'Neal, Eugene L. Tiller, contra.
1. When paraphernalia used in the operation of the lottery known as the numbers game are found in the possession of a defendant, such as here, there is a rebuttable presumption that the defendant is participating in the operation of a lottery. The evidence here is sufficient to sustain the conviction.
2. The answer of a Judge of the Criminal Court of Fulton County to a petition in the superior court for certiorari reflects the true picture as to what occurred on the trial of the case.
DECIDED JUNE 23, 1958.
The defendant was charged with maintaining and operating a lottery known as the numbers game. The case was heard by Judge Charles G. Bruce of the Criminal Court of Fulton County, a jury trial having been waived. The defendant entered a plea of not guilty. There was no stenographic report of the testimony.
After hearing the evidence, Judge Bruce adjudged the defendant guilty and entered the following judgment: "Whereupon it is considered by the court that the said defendant be put to work and labor on the public works of the County of Fulton or otherwise as the State Board of Correction may direct for the space of three months to be computed from the date of his sentence as provided in the act approved August 27, 1931."
Counsel for the defendant appealed the case by certiorari to the Superior Court of Fulton County. That court denied the certiorari. It is on this judgment that the case is here for review.
The petition for certiorari to the superior court alleged that the judgment of the Criminal Court of Fulton County was contrary to law and that Judge Bruce overruled a timely objection regarding introduction of an incriminatory admission prior to the corpus delicti having been first proven.
The evidence shows substantially: Lewis Clyburn, a member of the Metropolitan Lottery Squad, described the game of chance known as the numbers game and testified that on August 6, 1957, he and Lt. Cox went to the defendant's home and found the defendant, his family and another man there; that he told the defendant that they had information that the defendant was a "banker" in the numbers game and he wanted to look for the lottery. They searched the premises and found two carbon tickets which had been torn up and then found a piece of paper with some numbers on it under the cloth on a cabinet; that the defendant made a statement freely and without any promise of reward and that the defendant stated that he was a "writer". The witness then identified some paper bags, pencils, pads, newspapers and rubber bands as items which were found in the defendant's dwelling. On cross-examination the same witness testified that the three tickets introduced in evidence by the State indicated two different methods of playing the game, and that it was unlikely that the same writer would be using two different methods and, without the statement of the defendant, he would say that the defendant was a player. He further testified that the items found in the defendant's home were the kind commonly found in any person's home whether he was in the lottery business or not. The solicitor then tendered into evidence the lottery tickets marked "1, 2, and 3" without objection, and the paper bags, pencils, pads, newspapers and rubber bands which were objected to but were admitted before the court could rule on the objection by defense counsel. The same witness further testified on cross-examination that the piece of paper without any writer's number on it was in his opinion a player's ticket and that, taking the lottery tickets by themselves without the defendant's incriminatory statement, he would designate the defendant a player, and that all of the tickets found could have been those of a player as well as those of a writer.
The defendant made a statement that he had never written lottery in his life and did not say he was a writer; that he works as a carpenter and painter and the tickets that were found were his as a player.
The judge, in his untraversed answer stated that Mr. Clyburn testified that all statements were made without any promise of reward or fear of punishment, but that in general conversation, after the discovery of the lottery evidence, when asked what his participation in the lottery was, the defendant replied, "Boss, I am just a little `ole writer." In the answer the judge stated, regarding the point as to whether the defendant was a player or a writer, that Lt. Cox, while talking to the defendant, stated that the defendant made to him the statement that he was a writer, and that these tickets found in his possession were his writer's copy for the business he had already turned in for that day. Lt. Cox stated that he sorted out these pieces of paper and questioned the defendant as to how he could tell that these were writer's tickets, and that the defendant stated that he wrote them with the carbon underneath them upside down and that the writing would be reversed and that the defendant took a mirror over to a table, where the tickets were, and placed them in such a way that he and Mr. Clyburn could read them in the mirror and that at this time the defendant showed them the writer's number on the tickets.
1. Counsel for the defendant cites Chandler v. State, 63 Ga. App. 304 ( 11 S.E.2d 103) as authority for reversing the case at bar. In that case there was sufficient evidence for this court to reverse the judgment of the trial court. There a police officer, a witness for the State, admitted on cross-examination that the ribbon in question (the ribbon being practically the only evidence presented) "could be some other kind of ribbon" other than a lottery ribbon. It follows that that case is not authority for reversal for the case at bar. Counsel also cites Lemon v. State, 66 Ga. App. 653 ( 19 S.E.2d 52). In that case the evidence did not exclude every other reasonable hypothesis save that of the guilt of the accused. The facts there are not applicable to the facts of the instant case. Counsel also cites Jeffries v. State, 92 Ga. App. 483 ( 88 S.E.2d 713). There three codefendants were acquitted and it was shown that, in order for the crime to have been committed, it was necessary for more than one person to have been involved. For that reason the conviction of the defendant was void because of repugnancy. That case is not authority for reversal of the case at bar.
Counsel for the State cite Holmes v. State, 65 Ga. App. 13 ( 13 S.E.2d 114) as authority to show that the evidence is sufficient to sustain the verdict. The facts in the instant case are even stronger against the defendant than the facts in the Holmes case. See also Ransome v. State, 53 Ga. App. 490 ( 186 S.E. 436).
In Mills v. State, 71 Ga. App. 353 ( 30 S.E.2d 824) this court went into detail step by step showing the ramifications of a numbers game case and stated that the finding in the defendant's home of paraphernalia used in the operation of the game is presumed to show ownership by the defendant. In the instant case we find, among other evidence, the following: Possession of lottery paraphernalia and testimony of a police officer of the detailed manner of the operation of a lottery. See Code § 26-6502. When we consider the record in the instant case as compared with the Mills case, and the many cases annotated under the catchword "Number game" following that Code section involving the operation of the lottery game, known as the number game, we are constrained to hold that the evidence in the instant case is amply sufficient to sustain the verdict.
2. Counsel for the State cite and rely on Knowles v. Coachman, 109 Ga. 356, 358 ( 34 S.E. 607) regarding evidence in a certiorari case. In that case the Supreme Court stated: "Upon the trial of a certiorari case, it is to the answer of the magistrate, or judge of the lower court, and not to the petition for the writ of certiorari, that the superior court must look, in order to ascertain what occurred upon the trial of the case below. . . If the plaintiff desires to controvert any statement contained in the answer, his remedy is to traverse the truth of the same." This case is authority for that point of law. See also Thompson v. Becham, 2 Ga. App. 84 ( 58 S.E. 311) to the same effect. In Shirley v. Byrd, 162 Ga. 598 ( 134 S.E. 316) it was stated correctly that grounds for a motion for a new trial upon the admission of evidence should affirmatively show the objection made at the trial to such evidence. In regard to admission or exclusion of testimony, see Sims v. Sims, 131 Ga. 262 ( 62 S.E. 192), Hunter v. State, 148 Ga. 566 ( 97 S.E. 523), Kerney v. State, 21 Ga. App. 500 ( 94 S.E. 625), and Fillingame v. Campbell, 87 Ga. App. 481 (2) ( 74 S.E.2d 392). Where no error of law appears but only issues of fact are involved in an appeal to an appellate court, the verdict of the jury will not be disturbed. See Bell Brothers v. Aiken, 1 Ga. App. 36 ( 57 S.E. 1001), and Shields v. State, 75 Ga. App. 630 ( 44 S.E.2d 59).
The Superior Court of Fulton County did not err in overruling the petition for certiorari.
Judgment affirmed. Townsend and Carlisle, JJ., concur.