Opinion
34388.
DECIDED JANUARY 17, 1953.
Indictment for maintaining slot-machines; from Floyd Superior Court — Judge Nichols. October 21, 1952.
Hicks Culbert, Maddox Maddox, for plaintiff in error.
John W. Davis, Solicitor-General, contra.
Under the provisions of Code § 26-6502 it is a misdemeanor for one to "keep, maintain, employ, or carry on any lottery," and under said section it is also made a misdemeanor for any person to "keep, maintain, employ, or carry on any . . . other scheme or device for the hazarding of any money"; and a slot machine being a device for the hazarding of money, one who keeps and operates a slot machine is guilty of a misdemeanor under this section. An indictment drawn under § 26-6502 charging that the defendant "did keep, maintain, employ and carry on certain schemes and devices, for the hazarding of money, said schemes and devices being commonly known and called as follows: two five-cent slot machines; two ten-cent slot machines; two twenty-five cent slot machines; one fifty-cent slot machine," is not subject to general demurrer because the offense is not designated therein as a lottery, and such indictment is sufficient under said Code section.
DECIDED JANUARY 17, 1953.
Elmo Miller was indicted by the Floyd County grand jury and charged "with the offense of misdemeanor, for that the said Elmo Miller did on the 20th day of July," 1951, in said county unlawfully "keep, maintain, employ and carry on certain schemes and devices, for the hazarding of money, said schemes and devices being commonly known and called as follows: two five-cent slot machines; two ten-cent slot machines, two twenty-five cent slot machines; one fifty-cent slot machine." Before pleading to the merits, the defendant demurred to the indictment on the following grounds: "(1) That said indictment fails to set forth any offense contrary to the laws of . . Georgia. (2) That said indictment purports to be based upon Code section 26-6502 . . which makes criminal and contrary to law to `keep, maintain, employ, or carry on any lottery or any other scheme or device for the hazarding of any money or valuable thing,' and that said indictment fails to charge and allege that this defendant did `keep, maintain, employ, or carry on a lottery,' but does allege that he did `keep, maintain, employ and carry on certain schemes and devices, for the hazarding of money,' and omits entirely the word `lottery', and this defendant shows that the facts and things alleged in said indictment show that if any offense was committed or any act or thing done by the defendant it was carrying on a lottery, and that the defendant could not be guilty of the offense charged for the failure to include in said indictment the word `lottery'. (3) This defendant shows that the allegations of fact set forth in said indictment constitute a `lottery' and not a scheme or device as is contemplated by section 26-6502 of the Code of Georgia, and consequently this defendant could not be convicted of any offense, and said indictment fails to set forth any offense as against him. (4) That the allegation of said indictment that the defendant did `keep, maintain, employ and carry on certain schemes and devices, for the hazarding of money, said schemes and devices being commonly known and called as follows: two five-cent slot machines; two ten-cent slot machines; two twenty-five cent slot machines; and one fifty-cent slot machine' is a mere conclusion of the pleader and that said indictment fails to set forth the particular facts or things constituting the alleged offense so as to enable him to prepare for trial, and on the contrary that if they allege or show anything they show that the defendant did keep, maintain, employ or carry on a lottery. (5) That said indictment is fatally defective in that it fails to set forth in any particularity what scheme or device for the hazarding of money was used or employed by the defendant, and that said indictment affirmatively shows that instead of a scheme or device for the hazarding of money that if said indictment alleges or shows anything it shows the carrying on of a lottery. (6) That said indictment fails to allege or set forth what schemes or devices were used or employed by the defendant in the commission of the offense alleged."
The trial judge, after argument, overruled the above demurrers, and to this judgment the defendant now excepts directly to this court.
The defendant insists that the indictment returned against him was fatally defective and fails to set forth any offense under the laws of this State, for the reason that it purports to be based upon the provisions of Code § 26-6502, which makes it a misdemeanor for one to "keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money," and does not specifically charge that the defendant did keep, maintain, employ or carry on a lottery, merely alleging that the defendant did "keep, maintain, employ and carry on certain schemes and devices for the hazarding of money," omitting entirely therefrom the word "lottery." The defendant says that, if the indictment charges any offense, it charges the defendant with a lottery. This court does not agree with the defendant's contention and with his construction of said statute and of the allegations of the indictment. The failure of the indictment to use the word "lottery" in charging that the defendant in this case did "keep, maintain, employ and carry on certain schemes and devices, for the hazarding of money, said schemes and devices being commonly known and called . . two five-cent slot machines; two ten-cent slot machines; two twenty-five cent slot machines; one fifty-cent slot machine," did not render said indictment fatally defective, and the indictment was not thereby subject to demurrer as failing to charge any offense against this defendant under the Georgia law. Code § 26-6502 provides: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." The conjunction "or" is a correlative of "either." The use in this section of "or" means that "any person who, by himself or another, shall keep, maintain, employ or carry on any lottery" shall be guilty of a misdemeanor, and also that any person who shall by himself or another keep, maintain, employ or carry on any other scheme or device for the hazarding of any money or valuable thing shall be guilty of a misdemeanor. Said Code section provides that "either" of the said offenses constitutes a violation of the law — the operating of a lottery, or the operating of any scheme or device for the hazarding of money. There is no merit in the defendant's contention in this regard. The indictment clearly charges the defendant with an offense in charging that he did on said date "keep, maintain, employ, and carry on certain schemes and devices for the hazarding of money, said schemes and devices being commonly known and called . . [devices described in the indictment]." A slot machine is a device for the hazarding of money, and it is not necessary that the accusation or indictment allege the manner in which such machine operates. Kolshorn v. State, 97 Ga. 343 ( 23 S.E. 829). The operator of such a machine is guilty of violating the provisions of said Code section. Kolshorn v. State, supra; Brockett v. State, 33 Ga. App. 57 ( 125 S.E. 513); Jenner v. State, 43 Ga. App. 747 ( 160 S.E. 115); s. c., 173 Ga. 86 ( 159 S.E. 564); Elder v. Camp, 193 Ga. 320 ( 18 S.E.2d, 622) and cit.; Davis v. State, 77 Ga. App. 541 ( 49 S.E.2d 173). Such machine is a "device for the hazarding" of money. Elder v. Camp, supra. Said indictment was not defective in not designating the keeping, operating, and maintaining of a slot machine as a lottery.
It follows that the indictment was not subject to the grounds of demurrer urged thereto and that the trial judge did not err in overruling the same.
Judgment affirmed. Townsend and Carlisle, JJ., concur.