Opinion
36368.
DECIDED OCTOBER 16, 1956. REHEARING DENIED NOVEMBER 8, 1956.
Maintaining lottery. Before Judge Baldwin. Macon City Court. June 15, 1956.
T. Reese Watkins, Paul M. Conaway, Jacobs Gautier, for plaintiff in error.
H. T. O'Neal, Jr., Solicitor, contra.
1. An accusation which charges that the defendant "did then and there unlawfully keep, maintain, employ and carry on a certain lottery, scheme and device for the hazarding of money, said lottery, scheme and device being known as and called `the bug' and `number game' contrary to the laws of said State the good order, peace and dignity thereof," is legally sufficient without specifying or describing with more particularity how such game was operated. Guthas v. State, 54 Ga. App. 217 ( 187 S.E. 847); Kolshorn v. State, 97 Ga. 343 ( 23 S.E. 829); Moore v. State, 54 Ga. App. 218, 220 ( 187 S.E. 595); Hodges v. State, 55 Ga. App. 670 ( 191 S.E. 182); Turk v. State, 55 Ga. App. 732, 733 ( 191 S.E. 283); Lunsford v. State, 60 Ga. App. 537, 547 ( 4 S.E.2d 112); Howard v. State, 89 Ga. App. 158 ( 78 S.E.2d 876); Ramsey v. State, 85 Ga. App. 245 ( 69 S.E.2d 98). The accusation stated a violation of the law and was not subject to general demurrer, nor to any of the special demurrers calling for greater specificity in the designation of the type lottery and greater particularity as to the manner of its operation.
2. Where upon the trial of one charged with operating a lottery in Bibb County, known as the bug or numbers game, a qualified witness describes the methods used in operating such lottery in that county, including the use of "lay-off bankers," and from the other evidence adduced upon the trial, the jury is authorized to find that the defendant was seen surreptitiously accepting an object from another man at a time and place and in a manner suggestive of a lottery operation; that when an officer endeavored to investigate the matter, the defendant fled; that the officer never lost sight of the defendant; that the defendant never stopped in his flight until physically forced to do so; that tickets identified as lottery tickets were found within six inches of the defendant's feet; that the tickets, though lying in a heavily traveled part of a dirt road, were absolutely clean; that the defendant first called attention to the tickets by denying that they were found on him; that the defendant endeavored to bribe the arresting officer to forget about the tickets, and that the defendant was alone during all of this time, the jury was authorized to find that the defendant was engaged as a "lay-off banker" in a lottery operation, and the evidence authorized the verdict. See in this connection, Wood v. State, 58 Ga. App. 412 ( 198 S.E. 799).
3. Viewed as a whole, the charge is not subject to the criticism lodged against it in special ground 1. Immediately following the charge of which complaint is made, the court instructed the jury as follows: "I charge you this further, gentlemen, possession of what is called `bug tickets' is not a crime, and a defendant cannot be convicted just on mere possession of bug tickets alone, but it is necessary for the State to prove that one in possession of bug tickets is engaged in the operation of a lottery and is not a player."
4. In such a trial as indicated above, there is no error in permitting the State on cross-examination to inquire of a witness whether or not there was a pistol in the glove compartment of the defendant's automobile. Even if the witness had answered in the affirmative, which he did not, the effect of such a question would not have been to charge the defendant with another crime. See Hayes v. State, 28 Ga. App. 67 ( 110 S.E. 320). The State was entitled to a thorough and sifting cross-examination of the defendant's witness for the purpose of testing his veracity and memory. See in this connection Andrews v. State, 118 Ga. 1, 4 ( 43 S.E. 852). Furthermore, the witness replied that he did not know whether or not there was a pistol in the glove compartment of the defendant's automobile.
5. Special ground 3 of the motion for a new trial is without merit, as being incomplete. It does not appear from that ground that any reply was made to the question posed to the witness.
The trial court did not err in denying the motion for new trial for any reason assigned.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED OCTOBER 16, 1956 — REHEARING DENIED NOVEMBER 8, 1956.
Under an accusation in two counts, Count 2 of which was abandoned by the State, the defendant, Will Parks Clay, was tried and convicted of carrying on a certain lottery. The allegations of Count 1 of the accusation are as follows:
"L. H. Chapman in the name and behalf of the citizens of Georgia, upon his oath as appears by the above and foregoing affidavit, charges and accuses Will Parks Clay with the offense of a misdemeanor for that the said Will Parks Clay on the 4th day of January in the year nineteen hundred and fifty-six in the county aforesaid [Bibb], did then and there unlawfully keep, maintain, employ and carry on a certain lottery, scheme and device being known as and called `the bug' and `number game' contrary to the laws of said State the good order, peace and dignity thereof."
The defendant demurred generally and specially to Count 1 of the accusation upon the following grounds:
"1. That said accusation does not . . . sufficiently allege facts showing a violation of Section 26-6501 or of 26-6502, said accusation being wholly insufficient to charge defendant with a violation of any law of this State.
"2. Defendant demurs specially to . . . Count 1 . . . because the accusation fails to set forth the particular facts constituting the alleged offense so as to enable this defendant to prepare for trial.
"3. Said accusation does not set forth with particularity what scheme or device was employed and is vague and indefinite and insufficient to put the defendant on notice as to what kind of lottery is said to be charged or how or in what manner this defendant maintained any lottery.
"4. The allegations in the accusation that the scheme and device was known and called the bug and numbers game states a mere conclusion, and the accusation does not allege facts showing how said bug and numbers game is operated and fails to allege entirely the method of operation or how or in what manner the operation of said bug and numbers game constituted a violation of the laws of Georgia. . ."
The trial court entered the following order upon the demurrers:
"The State having abandoned Count 2, the demurrer, insofar as it relates to Count 1, is overruled and denied." The defendant assigns error here upon that judgment.
The defendant's motion for new trial, based on the usual general grounds and three special grounds, was denied, and he has brought the case here for review, assigning error on the overruling of his demurrers and his motion for new trial.
In special ground 1, error is assigned upon the following charge of the court: "I charge you that if you believe beyond a reasonable doubt that the defendant did possess bug tickets, as alleged, and these were a part of the paraphernalia of a lottery known as the bug and numbers game, and he thus aided, assisted, and participated in the carrying on of a lottery, if one was carried on, you would be authorized to convict the defendant of this charge." The criticism lodged against this charge is that mere possession of "bug tickets" is not a crime.
In special ground 2, error is assigned because the trial court permitted the State on cross-examination to ask a witness for the defendant, "Do you know whether there was a long-barrel .38 caliber pistol in the glove compartment of Mr. Clay's [the defendant] automobile, or not?" The witness replied to this question, "I do not."
In special ground 3, error is assigned on the following question posed to a witness for the defendant: "If a clean piece of paper was lying out three feet out in that dirt road, right in the tracks where a car traveling toward Pio Nono on Roff Home Avenue would have to pass over it, how long could that paper have been there without some car tearing it up or dirtying it or something of the sort? Give the jury some idea of the flow of traffic."