27 S.E.2d 470 | Ga. Ct. App. | 1943
The court erred in overruling the motion for new trial.
The evidence shows that there was betting by players on the grand totals registered by the machines. The sheriff testified: "I saw people playing the machines and betting on the side. As the bets were being placed on the side, the machine was being played by inserting a nickel in the slot. I don't know just exactly how they were betting. I heard them and saw them. They said I will bet so and so. I don't know whether they were betting on the numbers or not. There is a chance on these machines that they will make a high score and a low score. I am not familiar enough to say 40,000 or 2,000, but it would make some score. It is probable that one man would make one score and another man a different score. My understanding was, they were betting money, and there was a chance for those betting on a combination, or number, *101 to lose, and another to win. If there was no chance there will be no use to bet. . . I have never seen anybody put a coin in the machine and receive anything of value for that coin. I have never seen one of these machines operate in such a way as there was any chance for a person to gain more than the price he put in. I have never seen any person play either of these machines and have any money as against the machine itself. The only thing I know is, that I have seen two or more individuals operate these machines in such a way as by reason of the operations of the machines they can bet with each other on the result of the operations. A man might take the one marked `spot-ball' and run a score up to 10,000, and another man might run the score up to 15,000, and they could bet as to which would get the highest score. That is all I have ever seen with reference to these two machines, if they are the same machines. I will not say they are, but they are similar." This is the only evidence in the record which indicates any gaming in connection with the machines. There is no evidence that the defendant, who was the proprietor of the restaurant in which the machines were operated, had any knowledge that any of the operators did any side betting among themselves, or participated in such betting in any way. The sheriff testified that he visited the defendant's restaurant only once, when he witnessed the side-betting specified above. He did not see the defendant on that occasion. He testified, however, that the defendant later informed him that defendant saw the witness (sheriff) go to the door on that occasion, but did not tell the sheriff where he was at the time he saw him.
A deputy sheriff testified that he passed the defendant's place of business about 2:20 o'clock a. m., and saw it open, but he did not stop; and that he had seen similar machines giving free games.
The chief of police of Toccoa stated that he had seen the machines in the restaurant during the last two or three months, had seen them played, and did not see any betting; and on cross-examination: "I never did see anybody bet on the side. I never did see anybody operate either one of these machines and receive a pay-off, or anything of value, or a prize. I never did see one or two operate the machines and bet each other as to what number would come up."
The defendant, in his statement at the trial, contended that he *102
furnished the machines for amusement only, and had no knowledge that any of the players had been betting among themselves.
1. In Russell v. Equitable Loan SecurityCo.,
Able counsel for the State cites Lewis v. State,
Counsel for the State further cites Snead v. State,
(
We have been unable to find any decision with facts similar to those here involved, which would authorize the conviction of the defendant. It would seem that to hold that one violated the Code sections in question, merely because he had in his possession a machine such as is described by the evidence in this case, where persons would go and operate and bet among themselves, would eliminate all games of amusement of which we can conceive. The court erred in overruling the motion for new trial on the general grounds.
2. A special ground of the motion complains of a charge to the jury, which in so far as it violated the principle of law above ruled, was erroneous. Two other grounds complain of the admission in evidence of testimony to the effect that people were seen operating the machines, and were seen betting (on the side), and that the machines furnished the chance on which such bets were placed. These grounds are without merit.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.