Fleming v. State , 95 Ga. App. 3 ( 1957 )

95 Ga. App. 3 (1957) 96 S.E.2d 554

FLEMING
v.
THE STATE.

36527.

Court of Appeals of Georgia.

Decided January 22, 1957.

Lewis, Wylly & Javetz, for plaintiff in error.

Andrew J. Ryan, Solicitor, Sylvan A. Garfunkel, Thomas M. Johnson, Jr., contra.

TOWNSEND, J.

While conviction for the offense of keeping and maintaining a lottery may be had on circumstantial evidence, such evidence should be so clear and concise as to exclude every other reasonable hypothesis save that of the guilt of the accused. Ball v. State, 72 Ga. App. 45 (32 S.E.2d 912); Chandler v. State, 63 Ga. App. 304 (11 S.E.2d 103). Where, as here, the only evidence tending to connect the defendant with a lottery is that after he and his wife had quarreled, and he had spent several days away from home at a hotel, the wife led police officers to a stack of 25 blank pads or "lottery books" in the closet of their home, but the pads, although in the form usually used for lotteries, had never been used or stamped, and could not be used as lottery tickets, under the evidence, unless they were stamped, and where officers familiar with lottery operation testified to the effect that a lottery runner would be expected to have, in addition to tickets, some sort of memorandum pad, an operator would ordinarily need an adding machine and date stamp, and a tally man would be expected to have a tally sheet, but a thorough search of the premises disclosed none of these articles, the evidence taken as a whole is insufficient to sustain the verdict. The trial court erred in denying the motion for a new trial.

Judgment reversed. Gardner, P. J., and Carlisle, J., concur.