Opinion
33895.
DECIDED JANUARY 21, 1952.
Certiorari; from Fulton Superior Court — Judge Moore. October 5, 1951.
Wendell J. Helton, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, C. O. Murphy, contra.
1. An accusation charging the violation of Code § 26-6502 relating to lottery, couched substantially in the language of the Code section and specifying the particular lottery charged, is sufficient to withstand general demurrer.
2. ( a) A witness who, from experience based on investigations and knowledge so obtained, testifies as to the manner in which the lottery is maintained and operated, is competent and his testimony is not inadmissible as hearsay merely because the witness has not himself played the game or seen the bets made.
( b) Original tickets properly identified as being of the type used in the operation of the numbers game are properly admissible in evidence.
3. The verdict is supported by the evidence and, having the approval of the trial court, will not be disturbed.
DECIDED JANUARY 21, 1952.
Elsie Mae Ramsey was tried and convicted in the Criminal Court of Fulton County on an accusation charging that the defendant "in the county aforesaid on the 19th day of February, 1951, did keep, maintain and operate a lottery known as the number game for the hazarding of money." Upon the trial of the case a motion to dismiss the accusation was made on the ground that it was too vague and indefinite, in that it failed to state the names of other persons engaged with the principal in the lottery and the amount of money alleged to have been hazarded. This motion was overruled and the case proceeded to trial.
The parties entered into a stipulation that there was, on the date alleged in the accusation, a lottery known as the number game in operation in Fulton County based on daily sales of the bonds and stocks on the New York Stock Exchange; that the operators thereof sell chances through agents called writers who solicit patronage from persons in this county; that tickets so used are written in triplicate in sales books containing 50 pages each of yellow, white, and white tissue paper, the original going to the company headquarters, the copy to the person playing, and the white tissue to the writer. The method of collecting the tickets, determining winning numbers, paying off, and percentage of winnings going to the player, the writer, and the "banker," and the method used to correct errors known as "overlooks" was also fully described. An investigator for the solicitor-general testified that he had served in that capacity for six years and had, during his experience there, had occasion to become familiar with the numbers game in Fulton County. He identified the tickets introduced in evidence, identified the number and symbol on each ticket as being that of the writer, the symbol "4XX" being the manner in which some individual writer is known to the lottery company, the initials "S.S." on a ticket as being the initials of the purchaser thereof; the number "21951" as being "February 19, 1951," and the number "789" thereon as being the number chosen by the player, and the amount hazarded as being one cent. The witness similarly identified 14 lottery books as having been turned in by fourteen different writers. These books were, as shown by the State's evidence, found in the possession of the defendant in a store in the City of Atlanta, the defendant first having been observed in a trolley and followed when she alighted therefrom and entered the store. The books were in a package in one pocket of her jacket; in a package in the other pocket was found the sum of $187 in small bills and change. The defendant told the arresting officers that a man had handed her the packages and asked her to bring them to the store. In her statement to the jury she stated that a man unknown to her had offered her five dollars to take the packages to the store in question and that she did not know what they contained until the packages were opened by the officers in her presence.
From a verdict of guilty the defendant applied for certiorari to the Superior Court of Fulton County and the judgment denying the certiorari is assigned as error.
1. While an accusation which states the offense in the terms and language of the Code or so plainly that the nature of the offense charged may be easily understood, is generally sufficient (Code, § 27-701), nevertheless, where the terms used in the Code section are generic, as is the word "lottery" (there being an unlimited variety of games of chance which fall under this general head) it is not sufficient that an indictment charge the offense in the same general terms as in the definition of the crime, but it must state the particular offense intended to be charged. See President v. State, 83 Ga. App. 731 ( 64 S.E.2d 596). However, the accusation here which charges specifically the lottery maintained is sufficient. See Johnson v. State, 54 Ga. App. 260 (1) ( 187 S.E. 679); Hodges v. State, 55 Ga. App. 670 (1) ( 191 S.E. 182). The judgment of the trial court overruling the motion to dismiss the accusation is without error.
2. (a) Error is assigned in the petition for certiorari on the admission in evidence of the testimony of the State's witness as to the method of operation of the numbers game on the ground that the same is hearsay, the defendant having moved at the conclusion of this testimony to rule it out on this ground. The witness stated that he gave his testimony "as an expert witness on the operation of the lottery known as the numbers game in Fulton County. I am testifying as to its operation. I am testifying from my own knowledge of the manner of operations of the lottery known as the numbers game in Fulton County, based on a period of experience of over five and a half years, having interrogated many persons who were charged with violations of the lottery known as the numbers game, and having arrested persons in active violation of the lottery known as the numbers game, and having conferred with people engaged in the various phases of the operation of the lottery; I have examined a tremendous amount of evidence of all types; I have heard the defendants plead guilty in court, and admit their part of the operation that they played in the operation of the lottery. . . I saw the money, and I saw the tickets. I have never seen bets made and bets paid off."
Evidence as to the operation of a lottery is not rendered hearsay because the evidence was obtained in other cases rather than the case on trial. McIntyre v. State, 190 Ga. 872 (6) ( 11 S.E.2d 5, 134 A.L.R. 813). Nor is it rendered inadmissible merely because the witness has not himself played the game, or seen the bets actually made, if from all his testimony it appears that from his experience he has actual knowledge of the manner in which the lottery is maintained and operated. Lunsford v. State, 60 Ga. App. 537 (3), 545 ( 4 S.E.2d 112); Hodges v. State, 64 Ga. App. 328 ( 13 S.E.2d 90); Mills v. State, 71 Ga. App. 353 ( 30 S.E.2d 824). This assignment of error is without merit.
(b) Nor was it error to allow the packages containing tickets and money found on the person of the defendant to be introduced in evidence over objection, the tickets having been properly identified as being tickets used in the operation of the numbers game. Reeder v. State, 69 Ga. App. 705 (3) ( 26 S.E.2d 481); Williams v. State, 71 Ga. App. 155 ( 30 S.E.2d 356); Simmons v. State, 72 Ga. App. 16 (5) ( 32 S.E.2d 842); Johnson v. State, 67 Ga. App. 275 ( 19 S.E.2d 843); Taylor v. State, 67 Ga. App. 298 ( 20 S.E.2d 146).
3. The evidence in this case, which showed without dispute that there was a numbers game in operation in Fulton County on the date alleged in the indictment, that the tickets introduced in evidence were paraphernalia used in conducting such game, and that these tickets were found on the person of the defendant (her explanation thereof not being believed by the court) was amply sufficient to support the verdict on the general grounds. See Johnson v. State, 67 Ga. App. 275, supra; Taylor v. State, 67 Ga. App. 298, supra. Evidence that some of the tickets found in the possession of the defendant were dated February 19, 1951, and that the general practice was to destroy lottery tickets after holding them for a few days, together with the testimony as to the date when these particular tickets, together with the package of money, were found on the person of the accused, was also sufficient to show that the crime charged in the accusation was committed within the period of the statute of limitations.
The judge of the Superior Court of Fulton County did not err in overruling the petition for certiorari.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.