Opinion
35955.
DECIDED FEBRUARY 28, 1956. REHEARING DENIED MARCH 14, 1956.
Maintaining a lottery. Before Judge Baldwin. Macon City Court. August 16, 1955.
W. O. Cooper, Jr., for plaintiff in error.
H. T. O'Neal, Jr., Solicitor, contra.
1. The evidence is sufficient to sustain the verdict.
2. The special grounds show no cause for reversal.
DECIDED FEBRUARY 28, 1956 — REHEARING DENIED MARCH 14, 1956.
J. A. Pilcher was convicted in the City Court of Macon for operating and maintaining a lottery, and was sentenced to serve twelve months in the public works of the State, six months in jail and to pay a fine of $1,000. This is the maximum sentence for a misdemeanor. He filed a motion for a new trial on the statutory grounds and thereafter added five special grounds. The trial court overruled the motion on all grounds. Error is assigned here on this judgment.
The evidence shows substantially: That Don Walters, a deputy Sheriff of Bibb County, testified that he found, on a table in the kitchen in the home of the defendant, a brown sealed envelope containing 90 lottery tickets and a white sealed envelope containing 120 lottery tickets. The same witness testified that he found an adding machine in a little pantry adjoining the kitchen. The defendant contends that the lottery tickets did not belong to him and that the envelopes were placed there by a designing enemy for the purpose of framing him on lottery charges. A deputy sheriff testified as to the method of operating the gambling device known as lottery or numbers game.
Irene Smith, a witness for the State, testified: "On August 21, 1953, I was engaged in writing the `bug' in Bibb County, Georgia. On that day I got caught . . . a case was made against me for writing the bug. Some time after that case was made against me, some person contacted me with reference to getting me to write the bug. I was to write for Mr. Pilcher. He contacted me. That is Mr. J. A. Pilcher . . . I wrote some for Mr. Pilcher. . . Mr. Pilcher picked up out there once or twice. . . I remember the occasion when a man was arrested out on Waterville Road for bug but I don't remember the date. I had written some bug tickets for Mr. Pilcher on that date. That is my writing on the tickets in the brown envelope marked State's exhibit no. 1. The date of November 17 appears on these tickets . . . The last that I ever saw of the tickets I gave them to the man that came and got them. . . I saw Mr. Leaptrot when he came in the afternoon of November 17 . . . he came to my house and told me `I saw you give him [the pick-up man] a package'. . . He asked me if I had given him anything and I told him yes. . . I did not describe the packages to him. He said he saw them, found them where they were thrown out. . . He asked me what kind of a sack they were in and I told him they were in a brown sack . . . I didn't then know why he was asking me about this particular package, but later on I found out he wanted to know for sure was that the package . . . I burned the onion skin sheets after I heard that the man had got caught . . . Mr. Pilcher is the man I was writing these tickets marked State's exhibit no. 1 for, — that is the tickets which counsel is showing me, written in my hand."
1. The evidence is sufficient to sustain the verdict.
2. Special ground 1 assigns error because the court failed to charge on the legal presumption of ownership or possession of lottery tickets. Special ground 2 complains because the court charged: "I charge you that in this State the husband is recognized by law as the head of his family. Should you find in this case beyond a reasonable doubt that Mr. Pilcher and his wife alone resided together in an apartment on Pine Street, the legal presumption or inference is that the apartment and all the house-hold effects, including any `bug' tickets, if there were any, belongs to the husband as the head of the family, but this inference or presumption is rebuttable by proof satisfactory to the jury.
"If you believe that the paraphernalia for operating the numbers game was found in the apartment of the defendant, and you find the apartment was in the exclusive possession of the defendant and his wife, this would create a presumption that the defendant was the owner of the paraphernalia and possessor thereof. However, this presumption is rebuttable.
"I charge you should you find in this case that the apartment where Mr. Pilcher was arrested was not exclusively occupied by Mr. Pilcher and his wife, but was in joint possession and control of the defendant and other persons, and you find such other persons had control, access to and authority over the premises, as well as the defendant, then I charge you that the State must connect the defendant with any illegal `bug' tickets, if any were found there, in such manner as to convince you beyond a reasonable doubt that the defendant was either the owner of such tickets, or that he had custody, possession or control of the same or knowingly participated in such possession." Counsel for the defendant did not request a more specific charge. It occurs to us that the court charged this sufficiently as shown hereinabove in special ground 2, and in view of the whole charge of the court. The defense of the defendant was that the lottery tickets were placed there by a designing enemy of the defendant, which left no doubt but that the lottery tickets were there. This being admitted by both sides, we can see no harm in the court referring to the lottery or bug tickets as "paraphernalia" used in the lottery or bug game. This phraseology has been approved by this court time and time again. Special grounds 1 and 2 are not meritorious.
3. Special ground 3 assigns error because during the trial of the case the State placed on the stand a witness by the name of Irene Smith, who voluntarily testified under direct examination certain testimony. Counsel for the defendant made no objection to this witness at the time of the trial. Counsel objected because this witness was not forced to answer certain questions propounded to her on cross-examination. This ground is not meritorious because the court did not deprive the defendant of anything to which the defendant was entitled because of the refusal to compel, on pain of contempt, the witness to answer the question. Since counsel for the defendant did not make a motion to strike the testimony on direct examination, a device open to counsel, we cannot see that an objection made to the evidence elicited or not elicited on cross-examination, is a basis for reversal. See Gravitt v. State, 74 Ga. 191, Thorpe v. Wray, 68 Ga. 359, Pinkard v. State, 30 Ga. 757, and Young v. State, 65 Ga. 525. In Bishop v. Bishop, 157 Ga. 408 (1) ( 121 S.E. 305) the Supreme Court said: "A party, though introduced as witness in his own behalf, may, upon cross-examination, as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to criminate him or to bring infamy, disgrace, or public contempt upon himself."
Counsel for the defendant relies on McElhannon v. State, 99 Ga. 672 (2) ( 26 S.E. 501), as authority for the position taken that where the State introduces evidence as to a transaction, the defendant may cross-examine as to the whole transaction and where silence is kept on the ground of self-incrimination this is ground for striking the entire testimony of the witness. Had counsel made a motion to have Irene Smith's testimony stricken when she kept silent on ground of self-incrimination, the whole testimony should have been stricken, but counsel did not make such a motion. Such a motion was made in the McElhannon case. Hence the instant case is not controlled by the ruling in the McElhannon case.
4. Special ground 4 assigns error because it is alleged that the court committed reversible error in refusing to admit certain question. The questions concerned liquor transactions which occurred some four or five months after the instant case was made. In refusing to allow the questions to be asked the court specifically advised defense counsel that they would be free to raise the question later in the trial if something in the meantime should transpire which counsel felt would cure the objectionable features of the question. Counsel must not have felt that any such thing ever transpired because they never again availed themselves of the generous offer made by the court. They never again raised the question. It is apparent that the answer would have been hearsay. For this reason, and because the question was not relevant and was not harmful to the defendant, this special ground is not meritorious.
5. Special ground 5 is but a reiteration of the general grounds. We have covered the general grounds thoroughly in division one.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.