20 So. 2d 115 | Ala. Ct. App. | 1944
This case originated in the Recorder's Court of the City of Birmingham, Alabama, where appellant was convicted for the violation of a city ordinance which may be generally termed a lottery law. He appealed to the circuit court of said county and, upon judgment of conviction and sentence there, he appealed to this court.
In the circuit court the city attorney filed a complaint as follows: "Comes the City of Birmingham, Alabama, a municipal corporation and complains that George Brooks within twelve months before the beginning of this prosecution and within the police jurisdiction of said City of Birmingham, Alabama, did possess tickets, writings, papers, slips, documents, or memorandum of a kind which are customarily or usually used in the operation of a lottery, policy game, or other game of chance, contrary to and in violation of Ordinance #258-F, adopted by the Commission of the City of Birmingham, Alabama, January 25, 1938."
To this complaint appellant filed a motion to strike and also demurrers, both of which were overruled by the trial court. This ruling occasions the insistence of appellant's Assignments of Error 1 and 2.
With minor exceptions both methods of attacking the complaint raise the same questions and therefore will be treated jointly.
It is insisted that the complaint is not sufficient. The identical question was before this court in the very recent case of Stinson v. City of Birmingham,
It is also urged that the complaint is not founded on a warrant or sworn complaint and the city seeks to put the appellant to trial upon the mere statement of the city attorney unsupported by affidavit.
The record in the case shows only the appeal bond from the recorder's court to the circuit court so far as the proceedings in the recorder's court are indicated.
Sec.
In the case of McKinstry v. City of Tuscaloosa,
In the case of Aderhold v. Mayor and City Council of Anniston,
To like effect are the following cases: Borok v. City of Birmingham,
We hold, therefore, that the motion to strike and the demurrers to the complaint were correctly overruled.
The testimonial evidence for the appellee consisted of two witnesses, Officers Goldstein and Smith. The appellant did not introduce any evidence. The two officers went to Room 28 at the Dunbar Hotel in the City of Birmingham. There they found the defendant calling out numbers to one Gracie Lee Kidd, who was writing them down in a book, sitting at a little table by the side of the bed. The officers found in the same room a number of papers, books, memoranda and writings, including $8.18 in money. These papers, etc., were introduced in evidence at the trial in the circuit court and forwarded to this court for inspection. It is impossible to accurately describe these exhibits. In the main they are note books and slips of paper on which are written, with a lead pencil, hundreds of numerals in digits from four to ten. There was also found, and we have it before us, a book titled: "Three Wise Men. A Real Dream Book — 1940 Edition." This "Dream Book" contains fifty pages of very small type-printed words and numerals. On the inside of the cover directions are given. We quote one paragraph: "The numbers are not a bad risk providing you do not lose your head and plunge. Adopt a policy of not playing more than you can afford to play each day. Because invariably your number will come out when you have a penny on it and miss when you bust your vest."
Officer Goldstein testified that for six years he had been assigned to the gambling squad for the City of Birmingham and had several opportunities to investigate the operation of lotteries; that the papers and writings found in defendant's room and introduced in evidence "are suitable for and which are customarily and usually used in the operation of a lottery." Reynolds v. State,
This is conclusive of the insistence in assignments of error numbered 3, 5, 6 and 10. Smallwood v. State,
Appellant's written charge No. 1 would determine guilt upon the testimony of Officer Goldstein alone. Its refusal was proper as applied to the case at bar, and therefore appellant's assignment of error No. 4 is without merit. McKinstry v. City of Tuscaloosa, supra; McCoy v. State,
Written charge No. N-5 was refused to appellant. This charge states the law applicable to a conviction on circumstantial evidence. It is therein assumed that all the evidence in this case is circumstantial. This is not the fact as disclosed by the evidence. Its refusal was correct and appellant's assignment of error No. 7 cannot be sustained. Coleman v. State,
In appellant's brief filed in this cause a very short statement is made in aid of assignment of error No. 8, but no authorities are cited in support thereof. Any reference to assignment of error No. 9 is omitted from the brief. These insistences, *583
therefore, must be taken as being waived. Johnson v. State,
This concludes a consideration of all matters before this court on this appeal. We are of the opinion that the cause is due to be affirmed and it is so ordered.
Affirmed