58 Ga. App. 775 | Ga. Ct. App. | 1938
The defendant and W. C. Nix were jointly indicted for the offense of bribery. The indictment contained three counts. The defendant was tried alone in the criminal court of Fulton County, and was convicted on count 3, and acquitted on counts 1 and 2. Therefore we will consider count 3 only, which (formal parts omitted) reads as follows: “And the grand jurors aforesaid . . charge and accuse P. A. Turner and W. C. Nix with the offense of bribery; for that accused, in County of Eulton, State of Georgia, on the 8th day of March, 1937, with force and arms, did unlawfully receive of and from Gene Moss a sum of money, the exact amount of which is to the grand jurors unknown, as a reward given to said accused by the said Gene Moss to influence the behavior of accused in the discharge of their official duty, they each being then and there policemen of the City of Atlanta, Eulton County, Georgia; said sum of money’being given by said Gene Moss to said accused to influence accused to refrain from arresting certain persons who are to the grand jurors unknown, for violating the lottery law of Georgia which says (sec. 26-6502) that '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;' and the said money having been received and accepted by said accused as a reward to influence accused to refrain from arresting the said unknown persons for violating the said law as aforesaid, which illegal lottery business conducted by said persons who are to the grand jurors unknown was then and there known
The demurrers, general and special, were overruled, and the defendant assigns error on that judgment. The case proceeded to a verdict and judgment of guilty, and the accused obtained a writ of certiorari which was subsequently overruled by the judge of the superior court. The ease was brought to the Supreme Court, it being alleged in the bill of exceptions that “the Supreme Court . . has jurisdiction of this case, because there are constitutional questions involved.” The Supreme Court transferred the case to this, court, holding, in effect, that the constitutional questions in the case, even if properly raised, “involved mere application of unquestioned and unambiguous provisions of the constitution to a given state of facts.”
In our opinion, count 3 of the indictment was not subject to general demurrer, or to the special demurrer. “That which, from the nature of the case, can not be alleged need not be; and it is of frequent occurrence that the name of the person injured is unknown. Justice must not fail, nor the community go unprotected, for such cause. If the name is unknown, and it is so averred, it need not be proved.” State v. Wilson, 30 Conn. 507; Commonwealth v. Sherman, 13 Allen (Mass.), 248; Commonwealth v. Stoddard, 9 Allen, 280. The foregoing cases are cited approvingly in Nelms v. State, 84 Ga. 466, 468 (10 S. E. 1087, 20 Am. St. R. 377). See also Ray v. State, 4 Ga. App. 67 (60 S. E. 816). The complaint in the special demurrer that count 3 of the indictment failed to specify what kind of a lottery (in connection with which the bribe money was alleged to have been paid to the defendant) was being operated, is without merit. The nature of the lottery was merely incidental to the bribery charge; and the allegations, coupled with the facts set forth in said count, were sufficient to charge the offense of bribery. See Dawkins v. State, 27 Ga. App. 774 (109 S. E. 916); Payne v. State, 29 Ga. App. 156 (2) (114 S. E. 226).
Complaint is made in the petition for certiorari that the judge overruled a motion to declare a mistrial, based upon the admission of evidence as to a witness for the State having been threatened since his testimony before the grand jury. When the evidence was
Error is assigned upon the ruling of the court admitting in evidence two accusations, and also photographs attached thereto, “ charging Jim Fulcher, alias Jim Moss, with operating a lottery. The defendant objected to the pictures and the accusations, on the ground that no reason appeared why the witness should not be brought into court, placed on the witness-stand, so that the defendant could be confronted with him, and his counsel could have the right to cross-examine him; and on the further ground that it deprived the defendant of his constitutional right to be confronted with this man as a witness, and the jury of the right to see the witness and observe his manner on the witness-stand.” The evidence authorized a finding that Jim Fulcher, alias Jim Moss, was a co-conspirator of the defendant, and was the same man that the officers arrested as Gene Moss. Before the photographs were introduced in evidence they were shown to various witnesses on the stand, and identified as the photographs of the man that they saw receiving money from lottery “pick-up” men and “checking up” on them. Several witnesses identified the photographs as the pictures of the man that they saw hand a brown sack to the defendant on an occasion when the witnesses and the chief of the Atlanta police
The evidence, direct and circumstantial, together with the legal inferences and deductions arising therefrom, authorized' the verdict; and the judgment overruling the certiorari was not error, for any reason assigned.
Judgment affirmed.