Opinion
36054.
DECIDED FEBRUARY 29, 1956.
Lottery. Before Judge Manning. Cobb Superior Court. November 18, 1955.
Wesley R. Asinof, for plaintiff in error.
Luther C. Hames, Jr., Solicitor-General, contra.
1. The general grounds are without merit.
2. The one special ground is not meritorious.
DECIDED FEBRUARY 29, 1956.
J. I. Wood was convicted on a special presentment in the Superior Court of Cobb County, for keeping, maintaining and operating a lottery known as the numbers game. He was jointly indicted with Joe Montgomery, but tried separately. Error is assigned on the denial of his motion for new trial on the general grounds and one special ground.
The evidence for the State shows: Officers Hardy and Brown of the Cobb County Police Department testified that they had observed activities of the defendant in and about a colored man's house, later identified as Joe Montgomery, for a week; that on the day of the arrest of the defendant and Montgomery, they apprehended the defendant as he left this home; that upon searching the defendant, they found in his pocket $48.16 in an envelope that appeared to be a "church envelope" and some tickets, later identified as original lottery tickets; that they also found, under the defendant's foot, other writings, also identified as original lottery tickets; that a total of the tickets found in his pocket and under his foot indicated a wager of $48.15; that the church envelope was carried in a "brown sack" that also contained $1,650; that the lottery tickets taken from the defendant bore the serial number 85845; that when the officers arrested Montgomery, he had a book of lottery tickets bearing the serial number 85844.
The State further introduced an Atlanta policeman, L. A. Veal, an officer assigned to the vice squad, stipulated by the defense as an expert on the operation of lotteries, who identified the tickets taken from the defendant and Montgomery as lottery tickets for the lottery known as "numbers" or "the bug" and then testified as to the method of operation of this lottery. He testified that the tickets were the same type used in the operation of the lottery in Fulton County. This expert witness further testified: "I could not of my own knowledge say that there was any ribbon men, any writers, any books operating outside of Fulton County but in the vicinity of Fulton County, although we have had some information of that nature. We do know that they are taking books out of Fulton County and taking the tickets out of Fulton County to check them, taking them into other counties around Fulton County to check them, and that is a part of the operations, to tabulate the tickets and check them. So I can tell the jury and the court that the bug operation is not confined to just one county, but it is a multi-county operation. It is true that the prize could be in another county, but the consideration is the amount that is played on the number and of the amount of chance he takes. It is possible that the tickets could be written in Cobb County and transferred to Atlanta and turned in there, then go to another county to be tabulated and checked in headquarters, and from my experience that sort of thing has happened. If this defendant here was found in possession of these two sets of tickets here and found in possession of approximately fifty dollars in loose change in money, together with these bills and currency indicated here and had been in the home of a person who was found in possession of these and who came out to the car of this defendant after the police officers had seized the car, as to whether or not I would say in my opinion as an expert that the lottery known as the numbers game was being conducted and maintained in Cobb County — well, if the defendant was in possession of these tickets, and if some one else came up to the car where he was with this book these tickets were on, if he was in possession of them I would say that he had a part in the operation of a lottery, and that would indicate that a lottery known as the numbers game was being operated and maintained in Cobb County."
The State produced Harry Black, chief deputy sheriff of Cobb County, who testified that of his own knowledge in the past two years a game known as the numbers game, lotteries, has been conducted in Cobb County. The State also introduced Ernest Sanders, chief of police of the City of Marietta, who testified that he had had twelve years of experience and technical training in the maintenance and operation of lotteries, and based on the same, in his opinion, lottery has been conducted in Cobb County in the last two years; that he had known of a lottery to be operated here known as "the bug racket" and sometimes known as the "numbers racket"; and that it had been in operation in the past two years in Cobb County.
1. Counsel for the defendant contends that the evidence for the State failed to prove the corpus delicti. We have set out the evidence somewhat in detail. It shows beyond peradventure that the jury were amply authorized, under the evidence, to find that the corpus delicti was proved and that the defendant was engaged in the maintaining and operation of the crime charged in Cobb County within the statute of limitations. This contention is without merit.
2. The one special ground assigns error as follows: "Because movant contends that the court erred in charging the jury as follows: `If upon consideration of the evidence in the case you find that there is a conflict between the witnesses, or a conflict between a witness or witnesses and the defendant's statement, it would be your duty to reconcile that conflict if you can without imputing perjury to any witness and without imputing a false statement to the accused. If you can not do that it then becomes your duty to believe that witness or those witnesses you may think best entitled to belief.'
"Movant avers that the foregoing charge of the court was erroneous and injurious to him because it was misleading to the jury in that it was contended by the defendant by his statement to the jury that the witnesses for the State were not telling the truth, and said charge was prejudicial to the rights of the defendant in that said charge instructed the jury to believe the sworn testimony in the case in preference to the statement of the defendant in the event they were unable to reconcile the sworn testimony with the defendant's statement.
"Movant avers that said charge was also erroneous as an abstract principle of law.
"Movant further shows that in his statement to the jury he denied that there were any lottery tickets in his possession, whereas the witnesses for the State testified on oath that they found some lottery tickets in his, the defendant's pocket. Movant avers that said facts show a conflict between the witnesses for the State and the defendant's statement, and that the jury, under the law, would have been authorized to believe the defendant's statement in preference to the sworn testimony of the State's witnesses, if the jury found said testimony to be in conflict with the statement of the defendant and to be irreconcilable."
The assignment of error on this special ground has no merit. This court dealt with this question fully in Barnes v. State, 71 Ga. App. 9, 11 ( 29 S.E.2d 919), and in that opinion called attention to Edison v. State, 21 Ga. App. 244 ( 94 S.E. 73); Tyre v. State, 37 Ga. App. 376 ( 140 S.E. 527), and Jordan v. State, 130 Ga. 406 (5) ( 60 S.E. 1063). According to the evidence in the case at bar and viewing the charge as a whole, this principle of law and question has been decided adversely to the defendant in the above case.
Delk v. State, 135 Ga. 312 ( 69 S.E. 541, Ann. Cas. 1912A 105) and Hayden v. State, 69 Ga. 731, cited by counsel for the defendant, do not apply to the facts and pleadings in the instant case and have no merit.
In conclusion we deem it appropriate to add that the evidence in the instant case reveals that this crime particularly covers many counties if not the State as a whole. It is elementary that in misdemeanor cases, such as here, all who participate in the crime are principals. It matters not whether or not they are all residents of the same county. Therefore, in the instant case the evidence reveals that the defendant and Montgomery were carrying on this lottery which gives the purchasers of the tickets a one to five hundred chance to win (this court has judicially determined this). It occurs to us that there should be some legislation to make the purchaser of lottery tickets guilty as a party to the crime as in poker and many other gaming devices. We see no reason why it could not be done by proper legislation. Such legislation would perhaps go a long way in discouraging the purchasers of lottery tickets from participating in a one to five hundred chance on such a gambling device.
Judgment affirmed. Townsend and Carlisle, JJ., concur.