Opinion
41292.
ARGUED MAY 4, 1965.
DECIDED MAY 12, 1965.
Lottery. Savannah City Court. Before Judge Oliver.
B. Clarence Mayfield, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor, Sylvan A. Garfunkel, Tom A. Edenfield, contra.
The evidence being ample to support a conviction for carrying on a lottery, the motion for new trial on the general grounds only is without merit.
ARGUED MAY 4, 1965 — DECIDED MAY 12, 1965.
Armed with a search warrant the police of Savannah went to 811 West 51st Street Lane in that city and, gaining entrance after about 10 minutes delay, found the defendant James Williams in the house alone. There was living room furniture, a T-V set, a bed, but no kitchen utensils or equipment or food in the house. On the table with the T-V set were beer cans, a number of pencils and paper prepared for the taking down of bolita numbers. While they were in the house the telephone rang a number of times and the police answered. One, who gave her name as Rosa Holmes, told the officer who answered that she wanted to play the numbers but did not want her husband to know about it, and asked that 25 cents be placed on number 215, fifty cents on number 955, fifty cents on number 559, and twenty-five cents on number 595, concluding by saying "I don't know how I am going to get this money to you." Then a call came in from a Mary Smith who said she wanted "7 pieces of 51, 3 pieces of 15, 7 pieces of four and 3 pieces of 44." She gave her address, and the police went there, taking the defendant along, and in the defendant's presence she verified that she had made the call and was calling for him at a telephone number which is the number for the telephone at 811 W. 51st Street Lane. There was a call from a woman by the name of Vinia, who placed bets with the police on seven numbers, and another call from a woman who called herself Ruby, who in the course of placing bets on numbers remarked "This don't sound like you, James, what's the matter?" The policeman replied, "I've got a cigarette in my mouth," and she said "Wait a minute." After some five minutes another woman was on the phone who asked, "This you James?" The policeman answered, "Yes," and she said "You sure it's you, James?" and the policeman again replied, "Yes." "It don't sound like you," she replied. Again the officer told her that he had a cigarette in his mouth, and thereupon she stated at the other end "This is James," and Ruby came back on the phone placing bets on a total of 15 numbers. About that time she became suspicious, stated, "This ain't James," and hung up. Another woman who was known as "Sister" called and gave the police several numbers on which she wanted bets.
The house had been under surveillance for several days and the officers had observed a number of people coming and going. They had received a tip by way of a typed letter saying that James Williams was operating a bolita lottery from that address. No gambling paraphernalia were found on the person of James Williams.
The defendant denied any connection with any lottery operation and explained that he was in the house "to rest." He did not live at the house, did not own or rent it, but asserted that it was the home of an unnamed man who was "on a ship."
To the overruling of a motion for new trial on the general grounds only the defendant excepts.
The evidence was ample to sustain a conviction, and the overruling of the motion was proper.
Reliance upon the cases of Bailey v. State, 60 Ga. App. 556 ( 4 S.E.2d 409); Chandler v. State, 63 Ga. App. 304 ( 11 S.E.2d 103); Jones v. State, 64 Ga. App. 308 ( 13 S.E.2d 91); Ball v. State, 72 Ga. App. 45 ( 32 S.E.2d 912); Goss v. State, 82 Ga. App. 533 ( 61 S.E.2d 570) and Fleming v. State, 95 Ga. App. 3 ( 96 S.E.2d 554) is misplaced. In Fleming it appeared that the defendant's wife, after a quarrel with her husband and while he was away staying at a hotel, led the police to the house and showed them 25 blank pads which might have been used for making lottery books. No other paraphernalia of any kind were found. It was not beyond probability that the wife had placed the pads in the house and then reported the matter to the police because of anger with her husband. In Ball a lottery ribbon was found in the home of one John Smith where the defendant and four others were arrested. He had no lottery paraphernalia on him and denied any knowledge of it. It was held that the circumstantial evidence was insufficient to connect the defendant with the ribbon. In Chandler the defendant had a piece of adding machine tape carrying a date and seven numbers on it. The witness for the State admitted that it could have been something other than a lottery ribbon. This was held insufficient to sustain a conviction. In Bailey a wife was prosecuted when 25 tickets were found in a room of the house where she lived and was. Since the husband lived there also the evidence was insufficient to exclude every reasonable hypothesis save guilt. In Goss the defendant and another in his car were followed by a police car for some distance, but they lost the trail. Shortly thereafter other police located the car standing in front of a house and when the defendant came out he was searched. He had no lottery tickets, etc. but did have about $50 in money, mostly in bills, on him. Lottery tickets were found on the ground under the car. This was insufficient. The evidence in Jones was insufficient for like reasons.
It will be seen at once that the facts here are not such as to make any of those cases controlling, for here the defendant was found alone in a house with the door fastened, where telephone calls were rapidly coming in to place bets on numbers. Lottery equipment was present. Although the defendant denied any connection with the house and contended that it was that of a man "on a ship," some of the callers identified him as the one with whom they wished to place bets.
The circumstantial evidence was strong and the defendant's explanation of his presence was weak and equivocal. The conviction was authorized.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.