The evidence of operating a lottery by the accused was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of guilt. The court erred in overruling the certiorari.

DECIDED OCTOBER 5, 1940. The defendant was convicted, in the criminal court of Fulton County, of the offense of operating a lottery, and obtained a certiorari from the superior court. On the hearing the certiorari was overruled, and he excepted to that judgment. The evidence set forth in the petition for certiorari authorized the jury to find that the defendant, when arrested on January 18, 1939, had in his possession an adding-machine ribbon which the arresting officer testified was a lottery ribbon. The ribbon had on it the following words and numbers: "January 18, 1939, x9, 111, 1455, 1091, 363, c4 and 243." The evidence also showed that the defendant was intoxicated, and had just driven his automobile over a fire hose in the street. When arrested, he told the officer that if he would just charge him with drunken driving and "not put the *Page 305 lottery against him" he would keep the officer's car washed and waxed. Another policeman witness for the State admitted, on cross-examination, that the ribbon in question "could be some other kind of ribbon" other than a lottery ribbon. The evidence further showed that several years before the trial now under review the defendant had pleaded guilty to a lottery charge. The evidence against the defendant was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. The court erred in overruling the certiorari.

Judgment reversed. MacIntyre and Gardner, JJ., concur.