28 S.E.2d 350 | Ga. Ct. App. | 1943
The evidence authorized the verdict of guilty of keeping, maintaining, and carrying on a lottery, and of selling lottery tickets; none of the grounds of the motion for a new trial requires the grant of a new trial.
We think that the evidence authorized the jury to find that Barrett, whose place was raided by the officers, and where all the lottery paraphernalia was found, and the defendant associated themselves in a joint unlawful enterprise, to wit: "Keeping, maintaining, and operating a lottery," and also selling and offering for sale certain numbers representing a chance in a lottery. The acts of Barrett were done in pursuance and furtherance of the conspiracy, and were in contemplation of the law, the acts of both, notwithstanding the fact that the defendant may not have been actually present. "Conspiracy or common intent may be established by proof of acts and conduct, as well as of previous express agreement." Davis v. State,
2. The assignments of error based on the admission of testimony regarding knowledge of witnesses as to how "number games" operate, the knowledge being derived from others rather than from personal experience, are without merit. Andrews v.State,
3. The various assignments of error based on the ground that evidence though admissible against Barrett, the actual perpetrator of the unlawful acts which constituted a violation of the lottery law, did not show in any way that the defendant was connected with these unlawful acts, are without merit, since we have, in division 1 of this opinion, held that there was a conspiracy, and that the acts of Barrett, done in furtherance of the conspiracy, were the acts of Rawlins, though he may not have been actually present.
4. The testimony of the telephone operators who handled the telephone calls from the defendant's telephones to the telephone of Barrett, as well as the telephone slips put through by them, were admissible.
5. None of the other various objections made by the defendant to the evidence show reversible error.
6. The defendant objected to the introduction in evidence of the paraphernalia found in the house of Barrett in Macon, which tended to show that Barrett was carrying on a lottery there, and that tickets were being sold, or were being offered for sale, in connection with the same, on the ground that, while the evidence might have shown that Barrett was connected with the lottery, it did not show in any way that the defendant was connected with it. We think that when all the evidence is considered, it shows a conspiracy in which the defendant was engaged with Barrett and others in conducting a lottery; that the defendant, having entered in the conspiracy already formed, is deemed, in law, a party to all of the acts done in the prosecution of the enterprise of conducting a lottery. Daniels v. State,
7. The defendant seems to take the position that since the telephone bills were not found in his physical possession, they are not admissible. "In this State the husband is recognized by law as the head of the family, and, where he and his wife reside together, *314
the legal presumption is always, and not generally, that the house and all the household effects belong to the husband as the head of the family. Broome v. Davis,
8. "An accessory is one who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the act committed." Code, § 26-601. "An accessory before the fact is one who, though absent when the crime is committed, procures, counsels, or commands another to commit same." Code, § 26-602. "The rule of the common law that in misdemeanors there are no accessories before the fact, but that all who would be such in felony cases are principals in misdemeanors, is still of force in Georgia."Kinnebrew v. State,
9. The accusation contained two counts. The first count charged that the defendant did "keep, maintain, and operate a lottery," etc. The second count charged that he did sell or offer to sell certain numbers representing a chance in a lottery, etc. The defendant contends that the "first count embraces the second count, but the second count does not embrace the first. To convict on count 1 of the accusation, it was necessary to show guilt of maintaining a lottery which includes every element of a lottery, including the sale of chances. Therefore, to convict under count 1 prohibits the additional conviction of selling chances under count 2." There are two distinct crimes charged, and the essential elements of the two crimes are not the same. Just as formerly, to possess intoxicating liquor was one crime, and to sell the same liquor was another crime, the accused could be indicted in one count for possessing illegal liquor, and in another count for selling the same liquor, a verdict of guilty on both counts would be legal; so here, to keep and maintain the lottery is one crime, and "proof that he kept and maintained the same is sufficient to warrant a conviction without showing a drawing. Not only the proprietor, but all the agents assisting in keeping, maintaining, or operating a lottery are guilty as principals." Thomas v. State,
10. The verdict was authorized by the evidence. The court did not err in overruling the motion for a new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.