60 Ga. App. 537 | Ga. Ct. App. | 1939
At the September term, 1937, of the criminal court of Fulton County, Joel Lunsford was tried and convicted under an accusation charging that on January 28, 1937, he did keep, maintain, and operate a lottery known as the "number game,” for the hazarding of money. His certiorari was overruled, and he excepted.
Before the hearing of the certiorari, and in accordance with the provisions of the Code, § 19-302, the defendant, filed certain exceptions to the answer of the trial judge, on the ground that the answer did not reply specifically to all the allegations of the petition, as provided in the Code, § 19-301. Paragraph 1 of the judge’s answer was as follows: "The allegations of paragraphs 1, 2, 3, 4, and 5, respondent states that he admits, with the following qualification and addition: Upon the trial of said case all of the evidence and proceedings were taken down stenographically by a competent court reporter, which record has now been transcribed, and respondent attaches hereto a copy of said transcription as setting out a true and correct statement of all the evidence that was adduced upon the trial of the case, including the statements of the contentions by the solicitor representing the State, objections made
While the Code, § 19-301, declares that the answer of the trial judge to the writ of certiorari “shall reply specifically to the allegations in the petition,” since the purpose of said requirement is to enable the judge of the superior court to understand and determine whether the errors complained of in the petition were committed, and since in the present case the trial judge actually attached to his answer a stenographic report of the evidence, including the statement of the contentions by the solicitor representing the State, objections made by counsel, and rulings made by the court, which report is stated by the trial judge in his answer to be a true and correct report of these matters, as to the paragraphs containing allegations in reference to suc-h matters, the answer was a substantial compliance with the Code. The practice here adopted by the trial judge seems to have been heretofore approved by this court. Ealey v. State, 57 Ga. App. 184 (194 S. E. 881). See Norris v. Sibert, 53 Ga. App. 440 (186 S. E. 199). In Southern Ry. Co. v. Leggett, 117 Ga. 31 (43 S. E. 421), the justice certified merely “that true copies of all the proceedings in said cause are herewith sent up,” and in reference to the brief of evidence he certified that “the foregoing brief of testimony is true in substance and in form, as far as I can recollect.” See also Ford v. Toomer, 116 Ga. 795 (43 S. E. 45); Stephens v. Barns, 11 Ga. App. 491 (75 S. E. 827). As to paragraphs 2 and 3 of said petition, to the effect that the defendant filed a plea of autrefois convict to the accusation, and that the same was dismissed on oral motion based on the ground that said plea was insufficient in law, the answer was obviously de
To the indictment the defendant filed a plea of autrefois convict, alleging that on April 12, 1937, he had pleaded guilty to an accusation in the city court of Jonesboro, Clayton County, which charged him with operating and conducting a lottery in Clayton County “by selling tickets to purchasers who [if they?] guessed a certain number would receive five hundred times the amount of the purchase-price of said ticket;” “that the offense of keeping and maintaining a lottery known as the number game in Clayton County, Georgia, for which offense this defendant is accused in the accusation in this court, is the same offense; they
The offense charged against the defendant is that found in Code, § 26-6502, as follows: “Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor.” It is argued by the defendant with much force that the words “keep, maintain, employ, or carry on,” as used in this section, necessarily imply duration, permanence, and continuity; that the law does not take notice of a fraction of a day, so as to permit the segregation of the various acts committed in the operation of such lottery into more than one offense of operating, maintaining, or carrying on a lottery, whether committed in the same county or in different counties of this State; that all violations of law are against the sovereign State, and not against the several counties therein; and that where the State, through one of its counties, has exacted the penalty against the defendant for such a transaction, it can not, through another agency, again exact the same penalty for the same transaction, merely because the transaction covered more than one county. Whether or not one general transaction, carried on on the same day with the same motive and having the same impulse, may be considered as constituting more than one crime of the same character, must be determined by the character of the crime charged and a multiplicity of other circumstances; and no general rule applicable to all cases can be laid down. It is unquestionably true that if the defendant operated only one lottery within the purview of the statutes of this State, under the constitutional provision above quoted he could not be convicted more than once therefor. Yarious circumstances serve to individualize a crime. After mature deliberation we have come to the conclusion that in the operation of a lottery of the kind and character here charged, where those operations extend into two counties, since the acts done in each of the two counties, within themselves and without any reference to acts done in the other county, constitute every element of the crime of keeping, maintaining, and operating a lottery or other scheme or device for the hazarding of money, in so far as the State is concerned two distinct crimes of the above character have been committed against it. In neither of the counties, in such a lottery,
The defendant had pleaded guilty to an accusation in Clayton County, charging him with conducting and operating a lottery in that county by selling tickets to purchasers who [if they?] guessed a certain number would receive five hundred times the purchase-price of said ticket.” It is therefore conclusively established by his own solemn admission that he did so operate and conduct such a lottery in Clayton County, in the manner alleged. In our opinion, if in fact he did commit similar acts on the same date in Eulton County, that is, if he committed in Eulton County acts which standing alone would constitute the complete offense of the operation and maintenance of a lottery (and it is to be remembered in this connection that if he committed no such crime in Eulton County, this constitutes a good defense to the charge made against him in the accusation), then the previous conviction in Clayton County could not be pleaded in bar to such accusation, for the reason that, though the acts may have been committed on the same day as a part of the same general transaction and with the same motive and intent to violate the law, the acts themselves constituted separate offenses of operating, maintaining, and keeping a lottery, as to which the courts of both Eulton and Clayton Counties could convict him. In other words, where the defendant engages in the operation of a lottery such as the “number game,” wherein through agents numerous purchasers are sold tickets with numbers thereon of their own choosing, and on which they wager any amount of money they desire, with the possibility of obtaining back 500 times the amount thus wagered, and such operation of the lottery covers several counties in this State, he is guilty of operating and maintaining a lottery in each of these counties, for the reason that he has committed a series of acts which, though they be part of the same general transaction, constitute in themselves every element of the offense of operating, maintaining, and keeping a lottery; and since our constitution declares that “all criminal cases shall be tried in the county where the crime was committed” (Code, § 2-4306), each county in which such crime is
To entitle the accused successfully to plead former acquittal or conviction, the offenses charged in the two prosecutions must be the same in law and in fact. Holt v. State, 38 Ga. 187; Jones v. State, 55 Ga. 625; Buhler v. State, 64 Ga. 504; Goode v. State, 70 Ga. 752; Knight v. State, 73 Ga. 804; Knox v. State, 89 Ga. 259 (15 S. E. 308). It is apparent from what we have said that the offenses committed in Eulton and Clayton Counties could not be the same in law and in fact. Whether or not the principle of the decision in State of Ohio v. Shimman, 122 Ohio St. 522 (172 N. E. 367), cited by counsel for the defendant, to the effect that “a continuous and uninterrupted transportation of intoxicating liquor, whether within one county or in more than one county, constitutes a single offense, punishable in either county, but not in both; and a conviction therefor in one county may be pleaded in bar to a prosecution in the other,” and other cases of similar import (73 • A. L. R. 1502 and note), would be adopted as the rule in this State in a proper case, need not now be determined, since the facts here presented are in our opinion materially different. It will be noted that in the above case there were not a series of distinct and separate acts, but merely one continuous, uninterrupted act which extended into more than one county. It is to be further noted that in that case a very vigorous dissent from the majority ruling was filed, in which dissent three of the judges concurred. Moreover, the rule is that all crimes must be tried in the counties wherein they are committed. Generally the rule is, as at common law, that a plea of former conviction or acquittal in one county can be pleaded only in the same county; the reason assigned being that all indictments are local, and if the first indictment is laid in the wrong county the defendant can not be found guilty on it and could not have been in legal jeopardy. To this rule there are a few exceptions, as in larceny where the defendant may be tried in
On the trial S. D. Vaughn, a police officer, was permitted to testify as to the manner of the operation of the lottery set out in the accusation. This lottery is commonly referred to as the “number game” or the “bug game.” Its method of operation as described by Vaughn was the same as has been many times heretofore described by this court in other cases as deduced from the evidence in those cases. For complete details in this connection reference may be had to the cases cited in the second division of this opinion. His testimony was objected to on the ground that it appeared on cross-examination that he had never played the game, and that bis knowledge of the manner of its operation was gained through information from others. In Andrews v. State, 56 Ga. App. 12 (192 S. E. 73), it was ruled: “The testimony as to the manner in which the ‘number game’ (lottery) was operated was properly admitted, although the witnesses may have stated that they had no actual experience but had obtained their information from others.” To the same effect are Sable v. State, 48 Ga. App. 174 (172 S. E. 236); Crawford v. State, 49 Ga. App. 801 (176 S. E.
The State introduced evidence to the effect that on September 29, the day after the crime was alleged in the accusation to have been committed, the defendant and others were apprehended, in a house in Clayton County, with lottery tickets and other lottery paraphernalia. Counsel for the defendant objected to the introduction of this testimony, on the ground that it was irrelevant and immaterial, for the reason that it was “a transaction separate and distinct from that for which defendant was on trial, and a transaction taking place in Clayton County, and one taking place after the date of the charge alleged in the accusation.” It does not follow, as stated in the brief of counsel for the defendant, from the fact that the plea of autrefois convict was without merit, as we have ruled, that this evidence should be held to have been inadmissible. Under numerous rulings of this court the evidence was properly admitted. The defendant’s possession of lottery tickets and other lottery paraphernalia at a house in Clayton County in close proximity to Fulton County on the day after the date of the operation of the lottery charged, together with the evidence indicating that the house had been used for sometime previous thereto as the headquarters of the defendant in the operation of his lottery, together with the other evidence, tended to sustain the charge
A witness for the State was permitted to testify that a house in which the officers found certain lottery tickets and other papers was the defendant’s home. The testimony was objected to on the ground that it appeared on cross-examination that the testimony was hearsay. While this witness did testify that he knew it was the defendant’s home because the defendant’s wife told him so, he further testified as follows: “Q. Do you know that was Mr. Lunsford’s house? A. Sure, he lives there. Q. Have you ever seen him there? A. Yes, I have seen him drive in there several times. Q. You have never been there though when Mr. Lunsford was there ? A. It seems like I was there several times. Q. You have never been there though when Mr. Lunsford was there? A. It seems like I was there one time and talked to him one time, it seems like, there at his house. Q.' You are just surmising that’s his house he lives in? A. Well, his wife said—. Q. You can’t tell that. A. Yes, I’ve seen him go there, and know he lives there. I can swear he lives there, because I have seen him go there and seen him at home there.” In view of this testimony, the objection was properly overruled.
S. D. Yaughn, a police officer who had theretofore testified as to his familiarity with the operation of the lottery known as the "number game,” was shown certain documents which the officers found in the defendant’s residence in Eulton County on September 28, and was permitted to testify, in part, as follows: "Q. I will ask you to examine these records and, from your knowledge'of the’ lottery you have already testified to, to state whether or not that is used in the operation of the lottery and what that record represents ? A. This here to the left would indicate the writers’ numbers or the names of the pick-up men. This right over in this line here is either the shortage or the over of each man. This is the amount of money that is supposed to have been turned in. Q.
A witness introduced by the State testified that he had worked for the defendant in the operation of the “number game,” and this
It appears that the solicitor, during the trial, announced that the State rested. Counsel for the defendant thereupon announced that the defendant also rested. The solicitor then said: “The defendant hasn’t made any statement.” It appears from the record that counsel for the defendant merely stated to the court, at the time this statement was made: “I don’t think he ought to make a statement like that.” In his answer to the certiorari the trial judge stated: “Counsel for the defendant did not insist upon the court making a ruling, and the court did not understand that the statement of counsel called for a ruling; and consequently no ruling was made.” Counsel for the defendant having made no motion for mistrial, or objection, except to state to the court, “I don’t think he ought to make a statement like that,” and not having insisted upon a ruling by the trial.court, the ground does not show reversible error. See Code, § 81-1009; Patton v. State, 117 Ga. 230 (43 S. E. 533); Benton v. Hunter, 119 Ga. 381 (46 S. E. 414); Hendrix v. State, 173 Ga. 419 (160 S. E. 614); Simmons v. State, 181 Ga. 761 (184 S. E. 291); Sloan v. State, 183 Ga. 108 (187 S. E. 670); Brooks v. State, 183 Ga. 466 (188 S. E. 711, 108 A. L. R. 752); Benton v. State, 185 Ga. 254 (194 S. E. 166). Even if it be conceded that objection was properly made, it can not be said, under the circumstances, that the ground shows reversible error. Compare Head v. State, 58 Ga. App. 375 (198 S. E. 550).
In his argument to the jury the solicitor stated: “We found him [the defendant] caught cold with the documentary evidence that Cal says he picked up in his possession in Clayton County, with his sister-in-law and this poor little innocent-looking girl that they dragged down there and paid $10 a week to flirt with the chain-gang. He walked around himself and hired these poor negroes and these white people to make chain-gang fodder out of them.” Counsel for the defendant objected to this argument, on the ground that it was improper, and moved for a mistrial to be declared. The court overruled the motion. On inspection of the evidence introduced, the argument made was not so far afield from
Counsel for the defendant made objection to other statements made by the solicitor in his argument to the jury, and moved for a mistrial. Upon the objection being made the court asked counsel for the defendant what the statements of the solicitor were. Counsel made reply, and the court stated to the solicitor that the argument was improper, sustained the objection, and instructed the jury to disregard the argument. It does not appear from the record that counsel thereafter insisted on his motion to declare a mistrial. The argument made does not appear to have been so prejudicial as to warrant the grant of a new trial.
Many other assignments of error as to the admission of testimony are made, which we have not specially dealt with. We have examined these various assignments, and find that for various reasons they do not show reversible error. None of them presents any novel question, and we do not deem it necessary to deal with them at length. The evidence amply authorized the verdict; and no error of law appearing, the judge did not err in overruling the certiorari.
Judgment affirmed.