Duncan v. State, 32 S.E.2d 435

Duncan v. State

32 S.E.2d 435 | Ga. Ct. App. | 1944

Lead Opinion

1. The evidence, though conflicting, authorized the verdict.

2. The defendant has the right to argue his case, either personally or by an attorney; but it is not proper for him to make the argument while he is on the stand; and it was not reversible error, when, on objection by the solicitor-general that the defendant was arguing his case from the witness stand, the judge ruled that, in making his statement to the jury, the defendant should not "argue anything;" but that "he could make any statement he wanted to in his behalf. I want him to understand that." We think that it is clear, and was so understood by the defendant and the jury at the time, that the judge's ruling in the premises in no way restricted the defendant, except that he was not to argue his case while on the stand.

3. The rulings in Mills v. State, 71 Ga. App. 353 (30 S.E.2d, 824), are controlling on the other issues in the present case, and the superior court did not err in overruling the certiorari.

Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.

DECIDED NOVEMBER 17, 1944. REHEARING DENIED DECEMBER 12, 1944.

Addendum

STATEMENT OF FACTS BY MacINTYRE, J. That view of the evidence which is most favorable to upholding the verdict shows: That "on March 19, 1943 [the date of the alleged crime], Lieutenant Petty and I [city detective Densmore] went to Dudley Duncan's drug store, at Simpson and Ashby Streets, at 2:50 p. m., and on going into the drug store, he was there; and searching his place, the fountain counter sets three feet from the wall, and there was a large mirror on the wall, and under some papers and things on the little ledge in front of the mirror I found two memorandum books, and in one was all these lottery notations and things of what different writers owed in the lottery business. Then in the back of his place, in his private office, I found an adding machine and under it on a blotter I found these two lottery ribbons of two writers, XL and C10. On searching further, the soda-fountain counter has kind of another counter added to it where meat and stuff for making sandwiches is up under that, kind of an off-set from it, but it is another little counter, and the cash register sits in the off-set in the counter where they join together, and down under his cash register, pushed back where it was sitting on top, there were these original lottery tickets for March 19th, that day, folded up and pushed under the *842 edge of the cash register where no one could see them; but I found them under there. That was March 19th, as well as I remember, on Wednesday. The time and place I found those tickets was at the Duncan Drug Company, on Ashby and Simpson Streets, in Fulton County, Georgia. There was such a lottery as I described in operation in Fulton County, Georgia, on March 19, 1943, the day when I arrested Dudley Duncan and found those tickets." ON MOTION FOR REHEARING. 1. Going specifically into several of the assignments of error in the certiorari, we state:

(a) "The purpose of the Code, § 26-6502, is `to suppress lotteries by making it an offense to maintain or carry on one, or to do any of the several acts entering into the conduct of such a business; and the statute was framed, doubtless, with a view to reach all persons who might carry on, or participate in carrying on, the forbidden enterprise.'" Walker v. State, 69 Ga. App. 375 (25 S.E.2d 587).

(b) In misdemeanors, all who aid and abet in the commission of the offense are principals. Lewis v. State, 57 Ga. App. 340,342 (195 S.E. 285).

(c) The evidence, while circumstantial, authorized a finding that the books, tickets, and adding machine introduced in evidence, were a part of the paraphernalia used by the defendant in playing the lottery game charged in the accusation, and thus that the defendant did some of the several acts entering into the conduct of such lottery business, and participated in carrying on the forbidden enterprise. Mills v. State, supra. See alsoThrasher v. State, 68 Ga. App. 820, 823 (24 S.E.2d 222).

2. As we interpret the record, a witness was allowed to answer that in addition to the lottery paraphernalia he found on the day alleged in the accusation, he had, on another occasion and within two years prior to that date, found lottery books and tickets "around the defendant's place of business." He described the specific place where he had found them as follows: "His place is built in there where a bank [of dirt] has been dug out and *843 there are two or three doors there, and in the back of his place, in back of the drug store, are some boxes built in over gas meters, and we found on two or three different occasions, a number of blank lottery books packed in these gas meters, where you couldn't see them." This evidence, in connection with other evidence, authorized the jury to find that these tickets were on the premises of the defendant, or in his possession. The State is not confined to the date alleged in the accusation in proving the crime, but may prove it as of any date within the period of the statute of limitations (in the instant case two years). When the accusation 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 term. White v. State, 9 Ga. App. 558 (71 S.E. 879). This evidence was admissible as a circumstance in connection with the other proved circumstances in the case, all of which, when taken together, authorize a finding that the defendant was guilty as charged.Mills v. State (supra). See also Cole v. State, 120 Ga. 485 (48 S.E. 156); Fitzgerald v. State, 51 Ga. App. 636 (181 S.E. 186). This and all other matters in the motion having been considered, the motion for rehearing is Denied. Broyles, C.J., and Gardner, J., concur.