Thrasher v. State , 68 Ga. App. 820 ( 1943 )

1. As bearing on the issue of whether any of the several acts entering into the conduct of the lottery business in question were being carried on in a room, all the circumstances at the time of the alleged criminal act, including the movement and conduct of the defendant and evidence as to the articles in the room at the time of the alleged criminal act or immediately thereafter, which were admitted in evidence over objection, were properly admitted as showing circumstances of such character as, when taken in connection with other circumstances according to the common course of events, tended to establish the truth of the matter in issue.

2. In the instant case it was a question for the jury whether the defendant feigned a heart attack, and whether he heard the statement of the officer at the foot of the bed on which he was lying, and whether his failure to deny it amounted to an admission.

3. The evidence was circumstantial; and in order to rebut a defense based on the defendant's statement to the jury, which was open to the defendant, that, even if any of the acts entering into the conduct of the lottery business were being done in the room in question, the defendant had no knowledge of it, a plea of guilty of participating in the operation of a lottery on a former occasion tended to illustrate, characterize, and explain the defendant's act in the instant case, which act was capable of more than one construction. Under one construction the act would be innocent, and under the other construction it would not be innocent.

4. The evidence authorized the verdict.

DECIDED FEBRUARY 9, 1943. The defendant was convicted of operating a lottery known as the "number game." This is the lottery described in Cutcliff v.State, 51 Ga. App. 40 (179 S.E. 568), and Turk v. State,55 Ga. App. 732 (191 S.E. 283). W. G. Densmore, a police officer of Atlanta, testified that such a lottery was in operation in Fulton County, Georgia, on the date charged in the accusation, and described in detail the manner in which it was conducted. He further testified that he and other officers with a search warrant went to 517 Peeples Street and there, locked in this room, were the defendant and two other men.

When the officers knocked on the door some one on the inside said, "Who is it?" The officer replied, "This is the police, open the door." Thereupon there was a lot of noise in the room. "I was behind it and hit it with my shoulder, and they said, ``Wait a minute and we will open the door.' Bonnie South opened the door. . . As South opened the door Mr. Thrasher, the defendant, was knocking the screen out of the window on the right-hand side of the room, and was starting out of the window, and I told Mr. Allen to grab him. . . On the left side of the room was another person, Mr. Hendrix, sitting on the left side . . and behind this tin [over the fire place] I could see the fire blazing, and I snatched this tin out, and these lottery tickets were in there burning. I took them out and stomped the fire out, and Mr. South immediately started for the door. . . Mr. Thrasher . . began to complain about having heart trouble [and] did not make any statement about what he was doing there at the time. Mr. South made a statement in his presence, . . in the presence of Mr. Thrasher." As to what conversation passed between the officers and the others in the presence of Thrasher, "As I said, I brought a glass of water back to Mr. Thrasher who was laying on the bed, and at the same time I was talking to Mr. South, and standing at the foot of the bed after Mr. Thrasher got the glass of water, and I said to Mr. South, ``Is that all the business you had?' And he said, ``You don't think that's all the business we had, do you?' I said, ``I don't know, some of it burnt up.' He said, ``Well, those bad numbers — those not numbers — we had have cut our business in half, and we don't have half the business we had.' When Mr. South said that, Mr. Thrasher didn't say anything; he was just laying on the bed. He did not make any denial of what Mr. South said. . . State's exhibit 1 are original lottery tickets which I first saw when I took them out of the fireplace where they were burning in that room where I found Mr. Thrasher."

The witness further testified as to finding two telephones in the place, and telephone bills for them to C. I. Thomas and R. E. Smith, neither of whom was listed in the telephone directory. Also bills and receipts for natural gas and electricity in the names of R. E. Jackson and R. E. Harper. Neither of these names corresponded with that of the defendant or the other parties in the room behind the locked door at the time of the raid. Seventy-seven original yellow lottery tickets, partially burned, along with a large number of lottery tickets written on white paper were found at this time and place. There was a table in the room with two 'phones on it, a notebook which "Mr. South asked for back, and Mr. Thrasher asked for back, and stated there was money in there owed to them." (Italics ours.)

The defendant, in his statement to the jury, said in part that he had gone to the place to see a Mr. Thomas about some money that he had borrowed from him, and Mr. Thomas was out, and while he was there Thomas ran into the place and threw an armful of papers in the fireplace and then jumped out of the window. Defendant denied the charge in the accusation. Thereafter, the court allowed in evidence an accusation against Thrasher charging him with maintaining a lottery on December 22, 1936, showing that he had pleaded guilty thereto on March 8, 1937. After defendant had made his statement there was testimony that when the three officers approached the place in question two of them went to the front door and one went to the rear of the room, and that the window referred to by defendant, out of which he claimed Thomas had jumped, was about twenty feet from the ground, and that no one jumped out of the window at the time stated by the defendant. 1. The evidence that the two telephones were listed in fictitious names, the transaction with the landlord, the natural-gas company, the electric light company, the rent receipts, the telephone bills, the natural-gas bills, the electric-light bills, and the receipts which tended to show that the place was not a legitimate place of business and was carried on in the names of unknown persons, the lottery tickets which were taken from the fire, the memorandum book found on the table, which the defendant indicated was his book and which he would like to have back, were all testimony which was competent as bearing on the issue of whether any of the several acts entering into the conduct of the lottery business were being carried on in the room, and were thus relevant to prove all the circumstances at the time of the alleged criminal act, including the condition, movements, and conduct of the defendant at the time of the alleged criminal act or immediately thereafter, and, as disclosed by the testimony, were circumstances of such character as, when taken in connection with other circumstances according to the common course of events, tended to establish the truth of the matter in issue.

2. It has been held that "Where inculpatory statements were made by a brother of the defendant in his presence and under circumstances which would warrant the inference that he heard them but did not deny them, they were admissible in evidence, the question whether they were so heard being left to the jury under proper instructions." Smith v. State, 148 Ga. 332 (96 S.E. 632);Holt v. State, 28 Ga. App. 758 (113 S.E. 49); Thurman v.State, 14 Ga. App. 543 (3) (81 S.E. 796); Code § 38-409. Thus, in the instant case, it was a question for the jury whether the defendant feigned the heart attack, and whether he heard the statement of the officer at the foot of the bed upon which he was lying, and whether his failure to deny it amounted to an admission.

3. The evidence was circumstantial, and in order to rebut a defense based on the defendant's statement to the jury, which was open to the defendant, that even if any of the several acts entering into the conduct of the lottery business were being done in the room in question yet the defendant had no knowledge of it, the State could introduce other transactions of a similar character which tended to show the true nature of the transaction in question and support the State's claim that the defendant knew the lottery was being carried on in the room in question. In short, the other transactions even though they be punishable under the law as crimes were relevant or permissible to show guilty knowledge or scienter. Hence, the plea of guilty of participating in the operation of a lottery as charged in the accusation in a former case was competent evidence. The former transaction tended to illustrate, characterize, and explain defendant's act in the instant case, which act was capable of more than one construction. Under one construction the act would be innocent, and under the other construction it would not be innocent. Lewis v. State, 57 Ga. App. 340 (2) (195 S.E. 285); Fitzgerald v. State, 51 Ga. App. 636, 637 (181 S.E. 186).

4. If the defendant here was guilty at all he was guilty as a principal in the first degree, because in misdemeanors there are no such things as principals in the second degree or accessories.Lewis v. State, 33 Ga. 131, 134. Thus, the defendant could be convicted on proof that he, directly and personally, did any of the several acts entering into the conduct of such lottery business, a misdemeanor, or that he procured, counseled, commanded, aided, or abetted the criminal transaction of another who was the direct and immediate actor. Thomas v. State,65 Ga. App. 749 (16 S.E.2d, 447). Hence, when we take into consideration all the facts and circumstances in this case, including the previous transaction in which the defendant had operated or participated in the operation of a like plan or scheme known as the "number game," we think the jury was authorized to find that the defendant had participated in some of the several acts entering into the conduct of such lottery business (Morrow v. State,62 Ga. App. 718, 9 S.E.2d 699), and find him guilty as charged.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.