Estes v. State , 98 Ga. App. 521 ( 1958 )

Townsend, Judge.

This defendant was tried in the Criminal Court of Fulton County on a nine-count indictment charging him with carrying on nine separate lotteries on specific dates. On his conviction of each count, nine separate consecutive sentences were imposed. His exception is to the judgment of the Superior Court of Fulton County overruling his petition for certiorari which contained, among others, an assignment of error contending -that the verdicts are contrary to the evidence. This case differs from the usual single-count lottery indictment where if it is shown that in the. county of venue, there are lotteries in continuous operation in which various persons participate, proof of the manner of their operation and that the defendants participated therein during the period of the statute of limitations authorizes conviction for carrying on lotteries under Code §, 26-6502., Here the defendant is charged with carrying on lotteries in a. multiple-count indictment, the date of each offense being alleged as an essential averment thereof so as to particularize and segregate each offense alleged in each count, as opposed to á general indictment covering the entire period of the statute of limitations. It is accordingly necessary for the evidence to show as to each count contained in the indictment that the scheme and device for the hazarding of money contain the three elements essential to constitute the offense of lottery, to. wit, consideration, chance 'and prize.

The evidence here showed sales made on each of the dates alleged in the indictment by an employee of the defendant which, as to each of those dates, established the elements of consideration and chance. Nowhere in the evidence, however, does it appear that the, prize, the third element of the scheme, was separate as to each of the dates alleged in each of the counts of the indictment. So far as can be determined from the evidence,.there may not have been more than one prize involved. There being nine counts in the indictment upon which the defendant was convicted, the evidence must show, in order to be sufficient to support the verdict as to each count, nine prizes. Evidence appears as to the manner in which this particular type of lottery was operated in this locality showing that chances are sold by employees of the operators on prizes to be determined by certain parts of numbers to be taken from the totals of stock and bond market sales as the same may appear in a future publication of a newspaper. The evidence here fails to show from which future publication the, prize numbers were to' be selected for the chances sold on behalf of the defendant. Had it shown a separate publication from which the prize number would be selected as to each count in the indictment, and had it shown that chances were, sold on behalf of the defendant relating to each such prize, then the evidence would support the indictment as to each of the nine counts on which the defendant was convicted. The evidence here is sufficient to show the elements of consideration, chance and prize generally, but not so as to show a complete lottery related to> any count. It is accordingly insufficient to support the verdict on any count.

Decided November 4, 1958. George G. Finch, Joe B. Edwards, for plaintiff in error. Paul Webb, Solicitor-General, John I. Kelley, Solicitor, Henson McAuliffe, Broadus B. Zellars, Eugene L. Tiller, contra.

The State relies on Martin v. State, 73 Ga. App. 573 (37 S. E. 2d 411) and Smith v. State, 74 Ga. App. 777 (41 S. E. 2d 541) in support of its contention that this case ought to be affirmed. 1 There is nothing in those cases in conflict with what is here held. Those opinions hold that separate counts may be predicated on the keeping of separate lotteries in the same indictment, and this we reaffirm here. However, it has always been the law that where separate counts are contained in an indictment the evidence must be sufficient as to< each count and must be sufficient to show that the several counts relate to distinct transactions. Nine separate lotteries having been alleged to have been carried on by the defendant, and the defendant having been convicted for these nine separate and distinct crimes, the evidence in order to be. sufficient to support the verdict must show a separate crime as to each conviction; otherwise, a defendant may be convicted more than once for the same offense in violation of art. I, sec. I, par. VIII of our Constitution (Code, Ann., § 2-108).

The remaining assignments of error are not likely to recur upon another trial of this case, or are without merit.

The judge of the superior court erred in overruling the petition for certiorari.

Judgment reversed.

Carlisle, J., concurs. Gardner, P. J. concurs specially.