Opinion
6 Div. 440.
January 9, 1940.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Winston Reynolds was convicted of carrying on or representing a lottery, and he appeals.
Reversed and remanded.
The complaint charges the offense in the language of Code, § 4247. The demurrer takes the objection that the complaint does not state a criminal offense, and is not in proper form.
Beddow, Ray Jones and J. Howard Perdue, Jr., all of Birmingham, for appellant.
Not having qualified as an expert, it was error for the court to permit witness Propst to testify that certain slips of paper upon which numbers were written were tickets or slips used as gambling device in connection with a lottery. Clemmons v. State, 167 Ala. 20, 52 So. 467, 471; Wigmore on Evi. § 56; Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Com. v. Farrell, 187 Pa. 408, 41 A. 382; Kilbourne v. Jennings, 38 Iowa 533; Burgess v. American Mtg. Co., 119 Ala. 669, 24 So. 727; Roan v. State, 225 Ala. 428, 143 So. 454. The prosecution must have been commenced within twelve months, and there was no evidence that the slips upon which numbers were written were current or such as could have been used within twelve months preceding the date of the original warrant issued in this case. Code, 1923, § 4931. Evidence that defendant was around the barn of another, and the finding of tickets or paraphernalia that could have been used in connection with a lottery, in absence of any evidence tending to show defendant had any connection with same, was insufficient to sustain a conviction. A judgment of conviction is not supported by evidence giving rise to mere surmise or suspicion. Farmer v. State, 19 Ala. App. 560, 99 So. 59; Moon v. State, 19 Ala. App. 176, 95 So. 830; Guin v. State, 19 Ala. App. 67, 94 So. 788; Morris v. State, 18 Ala. App. 456, 93 So. 61; Biddle v. State, 19 Ala. App. 563, 99 So. 59; Roberson v. State, 18 Ala. App. 69, 88 So. 355; Gay v. State, 19 Ala. App. 238, 96 So. 646; Stafford v. State, 23 Ala. App. 556, 129 So. 310. Evidence merely of an opportunity to commit the crime is not sufficient. State v. Fowler, 205 N.C. 608, 172 S.E. 191.
Thos. S. Lawson, Atty. Gen., John J. Haynes, Asst. Atty. Gen., and Geo. Lewis Bailes, Circuit Solicitor, and Burgin Hawkins, Deputy Circuit Solicitor, both of Birmingham, for the State.
The competency of an expert is a matter within the discretion of the trial court. Witness Propst was shown to be qualified to testify concerning the slips, tickets, etc. Gay v. State, 17 Ala. App. 446, 85 So. 863; 6 Alabama Digest, Cr.Law, 481; People v. Sutherland, 59 Cal.App. 462, 210 P. 965; People v. Hinkle, 64 Cal.App. 375, 221 P. 693; People v. Derrick, 85 Cal.App. 406, 259 P. 481; Harris v. State, 28 Ala. App. 528, 189 So. 787. The Statute makes it an offense for one to be concerned in setting up or carrying on a lottery. The evidence clearly shows defendant's interest and concern in the operation of this lottery and warranted his conviction. Code, § 4247; Com. v. Lanzetti, 113 Pa. Super. 370, 173 A. 425; Flynn v. State, 52 Ga. App. 382, 183 S.E. 194; Ransom v. State, 55 Ga. App. 292, 189 S.E. 924; Coppedge v. State, 59 Ga. App. 358, 1 S.E.2d 43; Wood v. State, 58 Ga. App. 412, 198 S.E. 799; Cutcliff v. State, 51 Ga. App. 40, 179 S.E. 568.
The charge in this case is based upon Section 4247 of the Code of 1923 for carrying on or representing a lottery; or selling tickets in the same.
The complaint was in sufficient form to charge the defendant with an offense under the above cited Section of the Code, and was not subject to any of the demurrers interposed.
On the trial of the cause before the Judge, sitting without a jury, the State offered the testimony of witnesses tending to prove that within twelve months in Jefferson County there had been operated a lottery, or a game of like kind, in a dairy building near the City of Birmingham.
By various and many objections the defendant sought to raise the question as to whether or not the State's witness Propst was qualified to give testimony as to the paraphernalia found in the building and its uses in carrying on a lottery. These objections were all overruled, and the witness was allowed to testify as to his qualifications regarding the paraphernalia found at the time and place when he and other officers made a raid.
Objection is made that the witness Propst is not an expert. In a technical sense, a witness does not have to be an expert to give testimony as to things which he knows by study, practice, experience or observation on that particular subject.
We hold that the witness Propst was amply qualified to testify as to all of those articles found at the time and place of the raid, and that they were used, or had been used recently, in the carrying on of the game prohibited by Statute. Ample authority for this holding may be found in Volume Six, Alabama Digest, Criminal Law, 478. However, without going into a detailed discussion of the facts, we may say that, while there is sufficient evidence to establish the State's case in so far as it relates to a violation of the law by somebody, there is no sufficient evidence connecting this defendant with the commission of the offense which would authorize a conviction.
There not being sufficient evidence to sustain a conviction, the judgment is reversed and the cause is remanded.
Reversed and remanded.