Opinion
30668.
DECIDED NOVEMBER 3, 1944.
Certiorari; from Fulton superior court — Judge Hendrix. August 15, 1944.
Albert G. Callaway, for plaintiff in error.
Lindley W. Camp, solicitor, John A. Boykin, solicitor-general, Durwood T. Pye, contra.
The court did not err in overruling and dismissing the certiorari for any of the reasons assigned.
DECIDED NOVEMBER 3, 1944.
The defendant and his brother-in-law, Charlie E. Wood, were tried and convicted in the criminal court of Fulton County of keeping, maintaining, and operating a lottery, known as the number game, for the hazarding of money. The certiorari of each was overruled, and each excepted. Substantially, the evidence shows that the witnesses who appeared against the defendant and his brother-in-law (the two cases being, by consent, tried at the same time), were peace officers assigned to the suppression of the "number game," which at the time of the arrest was in operation in Fulton County, and reveals in detail the manner in which the game is operated. On the day the defendants were apprehended and arrested the State's witnesses were riding in the same car, Mr. Allen driving and Mr. Densmore sitting to Allen's right on the front seat. While thus cruising the city, they observed, under suspicious circumstances, the defendants ahead of them riding in an automobile, with Wood driving and Poulos sitting to Wood's right on the front seat. As the officers followed them the defendants began accelerating the speed of their car. Each time the officers endeavored to overtake the defendants, the defendants increased the speed of their car, until its speed approached approximately 60 or 65 miles per hour. They also would make turn-offs in an effort to evade the officers. Finally the policemen, after firing a pistol in an effort to cause the defendants to stop their car, soon thereafter ran the front bumper of their car into the back bumper of the defendants' car, and brought the cars to a stop. The evidence justifies the inference that during the chase Poulos threw a bag from the right of the car into the weeds on the side of the street. After making the arrest, Densmore recovered this bag, and found that it contained money and a considerable number of lottery books and tickets, evidencing several hundred sales. The chase began about 2:10 p. m. According to the operation of the number game the bets must be in the lottery headquarters between 2:00 and 2:30 o'clock p. m. The defendants were what are known as pickup men. In addition to the money (between twelve and fifteen dollars in change) found in the bag with the lottery paraphernalia, there were found in the possession of the defendant Poulos at the time of his arrest approximately $2300 in bills. $1500 was in new bills and wrapped with bank tape, and the other consisted of old bills. Officer Allen, who was driving the car, testified that on account of the speed at which he was driving, and the condition of the road to which he had to pay close attention, he did not see the bag when it was thrown from the defendants' car. Officer Densmore testified positively that he did see the bag thrown from the car, and returned to the spot and recovered it. The defendants testified each for the other, and each made a statement in his own behalf. They denied having thrown the bag from the car; they denied any knowledge of it or its contents, and contended that the money which was found on Poulos was the proceeds of certain Government bonds which Poulos had sold that morning for the purpose of paying an indebtedness on his home. They further contended that on the occasion in question Wood, who lived at Calhoun, Georgia, was in Atlanta for the purpose of visiting his brother-in-law Poulos and his sister, Poulos's wife; that they were on their way to the home of Poulos at the time the chase began and increased their speed, not knowing the officers were policemen, but thinking that they were persons trying to hold them up for the purpose of robbery of the money which Poulos had, contending that the officers were not in uniform and the car had nothing on it to indicate that it was a police car. The officers testified that while they were not in uniform it was easy to discover that the car was a police car.
The first three assignments of error, (a), (b) and (c), cover the general grounds. The evidence authorized the jury to infer that the defendants were jointly in possession of the lottery paraphernalia contained in the sack. This evidence, in connection with the evidence concerning the method of operating the number game, that it was at that time in operation in Fulton County, and in connection with other evidence, is sufficient to sustain the conviction. Mills v. State, 71 Ga. App. 353 ( 30 S.E.2d, 824); Davis v. State, 70 Ga. App. 513 ( 28 S.E.2d, 784).
(d) This special ground complains because the court over objection admitted evidence that the officers found considerable sums of money on one of the defendants. The admission of this evidence, under all the facts of the case, does not show error.
(e) This special assignment of error is to the effect that the judgment should be reversed because Allen's testimony that he did not see the bag thrown from the defendants' car, and Densmore's that he (Densmore) did see it thrown from the car, shows such a conflict in the State's evidence that the judgment should be reversed for that reason. There is no merit in this ground.
(f) Error is assigned here because the court permitted a State's witness, over objection, to testify that since the date of the crime for which the defendants were being tried the police officers had seen the defendants together in the negro section about the same time of day they were observed on the day of the arrest. The court allowed this evidence, the record shows, on the question that it was customary for pick-up men to go in pairs. While technically speaking, under the facts of the case, perhaps this testimony should have been excluded; nevertheless, under the whole record it could not have been prejudical to the defendants to the extent of requiring a reversal.
(g) This ground assigns error because the court, over objection permitted a witness for the State to testify concerning the "method and manner" of operating the "number game." This is without merit as this court has many times held. Mills v. State, supra.
(h) This ground assigns error because the court in charging the principle of circumstantial evidence used the word "should" instead of "shall" in giving that portion of the Code, § 38-109, as follows: "but shall exclude every other reasonable hypothesis save that of the guilt of the accused." This has been decided adversely to the defendant's contention in the case of Hodges v. State, 68 Ga. App. 229 ( 22 S.E.2d 611). The court did not err in overruling and dismissing the certiorari for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.