*1 "intentionally” "purposeful” "purposeful- "intentional” and ly,” the test be used to determine com- pensation employer should be awarded when an raises Code intentionally injury. 114-105 defense of self-inflicted § While the board pro its award not consider the defense (unreasonable neglect vided in Code 114-503 refusal or submit surgical to or follow competent reasonable treatment sur geon) appellees applicable employee it is contend here as the quit drinking cautioned his doctor and he continued to do so. The contention is "surgical without merit. The definition of treatment” cannot be stretched to cover abstention from alcohol. Barfield, See Hartford Acc. &c. Co.
84) surgery. for a definition of
Appellees’ appeal contention that should dismissed is without merit.
The is reversed with direction that the case be re- manded to the Compensation Board Workmen’s for findings of entry fact and applying an award in conformity law with opinion. reversed. concurs in the judgment only.
45599. TIERCE v. THE STATE. Argued September 16, 1970 Decided November Rehearing denied November *2 Matthews, Maddox, & Langford, Walton B.
James Flinn, Jr., appellant. for D. Charles Bolton, Jr., Vaughan, Attorney, Arthur K. N. District David Jr., General, Hill, Attorney N. Attorney Harold Executive Assistant Attorneys General, Harper, Talley, B. L. James Assistant William General, appellee. for Presiding Judge. Prior to the new Criminal penal lottery Georgia a crime under
operation of a was declared only statutes, lottery of was in the deci- but the definition a found necessary held to appellate of courts. The elements were sions determining prize, In chance and consideration. lottery, key question prac- promotion schemes constituted a tically of consideration. all the cases has lottery following definition: "A
The new Criminal Code added the prizes or procedure whereby or one more are distrib- scheme promised among persons have or considera- uted chance or prize, whether such scheme tion for a chance to win such sale, raffle, enterprise, gift, or procedure pool, lottery, gift called (d). policy or other name.” Code Ann. 26-2701 game, some requires Appellant language contends the of the new definition from is to be determined not question of consideration (e.g. flowing it in lottery operator benefits to standpoint scheme) but the nature increased business tickets, (pecuniary det- standpoint of the holders of the etc. says ques- flowing operator). Appellant them riment pay did the holder tickets to be asked is: tion chance? He further contends valuable consideration charge obligation no here is "no” because there answer imposed upon the holders of the cards. Several statutory States with a similar definition of language construed point of determination to be that of the reject ticket holder. do general propo- not this as a sition, only but the results reached they our sister States when applied participation it to a gift enterprise flexible such as we have here.
While some earlier cases language have used question seemed to determine the of consideration from the stand- point operator, court, comprehensive opinion writ- ten in clearly looked for standpoint consideration from the of the ticket holders present. and found it "Consideration as an en- terprise is shown when there is the actual promotion scheme, the sales a class of prizes, entitled to chances on supply considera- tion for all the by purchasing chances bulk pro- whatever the moter whether the to do so or Piggly *3 Southern, (3) (155 Wiggly 630). App. 115 Ga.
The new Criminal Code definition is not inconsistent with the require test. Both among persons those who receive a chance to win a there must be paid some who have a consid (made store). eration at the We do leg not believe the islature intended drastically change the test participants to have a consideration in order to have a or similar scheme. In the Foreword of the new Criminal the Study Committee states: ". . . it was a fundamental rule of the many committee to retain as possible, laws as interpreta with the tions of the carefully courts considered. The form arrange and might ment changed conditions, be meet modern the words changed uniformity, sake of but the substance was re possible Further, tained wherever . . .” specifi the definition itself cally includes scheme known "gift enterprise.” as a These promotional sales typically devices have been classi fied enterprises by as Boyd, supra; the courts. Winn- Stores, 642). Boatright, Dixie App. Inc. 115 Ga. The trial court did finding not err in guilty defendant of violat- (f). ing Code Ann. spe- concurs affirmed. special in
cially. concurs concurrence. also concurring specially. Judge, concur obliged Counsel my to add reasons therefor. affirmance but feel February "Stipulation the Case” that on admitted Tierce, Supermarket Billy of which Piggly-Wiggly defendant, manager, promotional operate "a general sales Jackpot.’” jackpot A program 'Piggly-Wiggly of Calhoun known as every City person listed Calhoun card had mailed to jackpot card Directory. Any person did not adult who receive program registering Piggly- participate in the with the could Supermarket eligible In order Wiggly jackpot for a card. his card jackpot prize- holder was to have Piggly-Wiggly Supermarket during drawing. Southern, Boyd Piggly-Wiggly As was held in (3) (155 630): of a "Consideration as an in the ac- when there shown scheme, promotion class tual of the prizes, supply on entitled to chances by purchasing whatever the consideration for all the chances in bulk promoter required to do so not under Calhoun, words, person Georgia, had re- any
In other (and every person Direc- ceived a card included Calhoun) small, purchase, tory no matter how at made Supermarket the week of the Piggly-Wiggly as drawing, then a consideration to each that furnished person who card. had a specifically "Stipulation of Facts” does not set
It is true that the effect were sold the defend- forth statement *4 during persons holding ant to one of a card drawing, necessary. was not Each and fact essen- but such proven in a does not tial to a conviction criminal case "Presump- provides pertinent part: by a witness. Code § experiences consists of drawn human tive evidence inferences effect, of hu- of cause and and observations connection man conduct.” arguments ju- by lawyers in often referred to
This statute is goes witness that "common sense rule.” It is the silent ries as the men who are to every jury room with the twelve into each and running supermarket Piggly-Wiggly decide the case. did it To selling goods public. to the To whom sell? purpose of
sole people are lo- it located. What people of Calhoun where was Directory, who are listed cated Calhoun? Those presume Piggly-Wiggly. a card from of whom received people in received a percent of the that one hundred week, imagined at the end of the when it card. Can it be $100, away jackpot of not less than not a sin- give time came Calhoun, Georgia, purchased penny’s had one gle resident Piggly-Wiggly Supermarket yet goods worth —and having people forward with their vis- these came the week to have their cards ited the Piggly-Wiggly Supermarket have conducted a punched? Would group away lucky card-holder of this drawing give $100 to the so, people? Hardly! If did when the second week non-buying it around, of business Piggly-Wiggly would be out because came forth in "presumptive evidence” rule as set Code 38- n Piggly-Wiggly Supermarket of Cal- presume that we can people it did not sell sell of Calhoun houn Therefore, was sufficient anybody. I feel that the evidence them to conviction, lower court. and would affirm the authorize v. SMITH.
45286. SORROUGH
rehearing
Sorrough
v.
Judge. On motion for
(175
926),
properly
thought
we
we had
dis-
Ga.
(172
Starr,
tinguished
v.
the case
Hurst
Ga.
(Smith
604);
Sorrough,
Appeal dismissed.