MacKey v. State , 75 Ga. App. 814 ( 1947 )

Gardner, J.

E. C. Mackey and George Debroskey were convicted in the City Court of Hinesville on an accusation containing 3 counts. The first count charged them jointly with operating a gaming house. The second count charged them with playing and betting for money and other things of value at games played with cards and dice and balls. The third count charged them with fraud in playing at games with cards and dice in that they did obtain money and things of value from the prosecutor by such fraud. The judge directed a verdict of not guilty on count three. The defendants were found guilty on the first and second counts. They filed their amended motion, which was overruled. On this judgment they assign error.

Decided October 23, 1947. T. E. Dawson, H. M. Hodges, C. L. Cowart, for plaintiff in error. W. F. Mills, Solicitor, W. C. Hodges, contra.

The evidence of the State, seeking to prove these charges on the second count, is very convincing. After studying the evidence carefully, we are of the opinion that it does not sustain a conviction on the first count. Counsel for the defendants concede, and we agree with them, that the evidence is sufficient to sjistain a conviction on the second count, as to the general grounds.

The attorneys for the defendants assign error on 8 special grounds, contending that the judgment should be reversed on count 2 also. The first and second grounds are not unequivocally approved by the court and therefore we will not consider them.

Special ground 3 complains of an error in the charge pertaining to count 1. Since we are granting a new trial on this count, it is not material to discuss it.

Special grounds 4, 5, 6 and 8 assign error on the charge of the court as to instructions regarding the verdict as applied to count 2. These assignments show no error.

Special ground 7 complains of an excerpt from the charge wherein the court referred to a preponderance of the evidence. While this has no application to a criminal case, yet in view of the record and the entire charge of the court and the admission of counsel above referred to, this assignment requires no reversal.

Judgment reversed as to count 1, and affirmed as to count 2.

MacIntyre, P. J., and Townsend, J., concur.