Daniel v. State
83 Ga. App. 733
Ga. Ct. App.
1951
Check Treatment
MacIntyre, P. J.

The defendant, Jack Daniel, was convicted in the Criminal Court of Fulton County under an accusation-charging him with the offense of having maintained and carried on a lottery ‍​​​‌‌​‌‌​‌​​​​​‌​‌​‌​​​‌‌​​‌​‌​‌​‌‌‌‌‌‌​​​‌‌‌‌‌​‍in Fultоn County on November 25, 1949, which is a misdemeanor. He apрlied to the Superior Court of Fulton County for a writ of certiorari, which was overruled and he excepted.

“Thе State is not confined to the date alleged in the аccusation in proving the crime, but may prove it as of any date within the period of limitations. . . When the acсusation charges the offense generally, ‍​​​‌‌​‌‌​‌​​​​​‌​‌​‌​​​‌‌​​‌​‌​‌​‌‌‌‌‌‌​​​‌‌‌‌‌​‍the State need not rest its case on proof of a single transaction, but may prove or attempt to prove any number of transactions of the character charged in the accusation and included within its terms.” White v. State, 9 Ga. App. 558 (1, 2) (71 S. E. 879). “The State, in making out its case, is not confined to the day named in thе accusation, but may prove the commission of tbe offense at any time within two years prior to the datе of ‍​​​‌‌​‌‌​‌​​​​​‌​‌​‌​​​‌‌​​‌​‌​‌​‌‌‌‌‌‌​​​‌‌‌‌‌​‍the accusation; and . . whether acquitted or convicted the accused can not again be triеd for such an offense committed within the period of limitation governing the case on trial.” Cole v. State, 120 Ga. 485 (2) (48 S. E. 156). “In a prosecution for a misdemeanor . . the State may prove as many separate . . [commissions of the offense chаrged] as ‍​​​‌‌​‌‌​‌​​​​​‌​‌​‌​​​‌‌​​‌​‌​‌​‌‌‌‌‌‌​​​‌‌‌‌‌​‍it can, provided such . . [commission of the offеnse] occurred within two years before the filing of the accusation.” Holmes v. State, 7 Ga. App. 570 (3) (67 S. E. 693).

In the instant case the evidence showed that on October 5, 1949, a city detective, W. 0. Allen, went tо 307 Pulliam Street in the City of Atlanta, Fulton County, Georgia, the residence of Mr. Hill, and found lottery in ‍​​​‌‌​‌‌​‌​​​​​‌​‌​‌​​​‌‌​​‌​‌​‌​‌‌‌‌‌‌​​​‌‌‌‌‌​‍his home, and also found the dеfendant Jack Daniel, whom he knew at that time as Jack Davis, sitting in the ro.om of Mr. Hill’s home and on his person he had sоme “complete lottery.” Mr. Allen also testified: “That *735 was at 307 Pulliam Street on October 5, 1949, in Fulton County, Georgia. I went thеre right after one o’clock. The defendant madе no explanation concerning the lottery therе with him; all he said was he was an interior decorator аnd was just figuring on the house. We found him in a room with a telephоne and lottery paraphernalia recovеred at that time. We also found adding machine ribbons, and adding machine, high and low money and figures in a book. By high and low money I mean it showed the high and low money for the day, the low being what was left after 25% was taken off of the high money, whiсh is a lottery operation.” This evidence was admissiblе over the objection urged that it put the defendant’s сharacter in' issue and was alone sufficient to authоrize' the jury to find the defendant guilty as charged of maintaining аnd carrying on a lottery (Thomas v. State, 118 Ga. 774, 45 S. E. 622), irrespective of the other evidence which was introduced relating to the defendant’s maintaining and carrying on a lottery on October 25, 1949. Holmes v. State, supra; Cole v. State, supra; Duncan v. State, 71 Ga. App. 841 (32 S. E. 2d, 435); and see, Fitzgerald v. State, 51 Ga. App. 636, 637 (181 S. E. 186).

The superior court did not err in overruling and denying the writ of certiorari.

Judgment affirmed.

Gardner and Townsend, JJ., concur.