Citation Numbers: 116 Ga. 555
Judges: Little
Filed Date: 11/12/1902
Status: Precedential
Modified Date: 1/12/2023
The plaintiff in error was brought to trial in the city court of Wrightsville, upon an accusation in which he, James H. Wright, and Jim Wright were jointly charged with the offense of “ gambling.” The trial resulted in the conviction of Pullen, who brought the case here for review by a bill of exceptions in which complaint is made, (1) that the court below overruled a demurrer to the accusation, and (2) that his motion for a new trial was also overruled. The first of these assignments of error was not insisted upon before this court. As to the second, we have reached the conclusion that a new trial should have been granted on the ground that the evidence did not support the verdict of guilty. Before undertaking to deal with the case upon its merits, it is necessary, however, for us to dispose of a motion made by counsel for the State, to dismiss the writ of error.
1. This motion was based upon the ground that “ what purports to be a brief of evidence in said case is not compiled as the law directs, and not briefed as required.” As was pointed out in the case of Southern Mining Co. v. Brown, 107 Ga. 264: “It is not the proper practice to move to dismiss a writ of error on the ground that the evidence has not been briefed as required by law.” We
2. Only one witness was introduced by the State. He testified that he knew Eube Pullen and “saw him gambling some time in May, 1902, . . at Smith’s & Eowland’s mill.” The witness fully described the manner in which the game he saw played was conducted by Pullen and the parties with whom he was gaming, but did not give the name of any of the persons who participated with Pullen in his forbidden pastime. It seems that the witness was unable to state who any of these persons were, for upon cross-examination he said: “ There was several others in the game; don’t remember who all.” Certain it is that he did not mention either James H. Wright or Jim Wright as being participants in the game, or even state that either of them was present. Was this, then, the occasion referred to in the accusation when “ the said Eube Pullen, James H. Wright, and Jim Wright, . . on the 15th day of June, 1902, did then and there unlawfully and with force and arms play and bet for money, or other thing of value, at a game played with cards ? ” We can not ourselves undertake to say, nor do we think the jury were authorized to indulge in any speculation on the subject.
It was not, of course, incumbent on the State to show that the unlicensed performance in which Pullen was alleged to have taken part occurred on the precise date named in the accusation. Chapman v. State, 18 Ga. 736. But it was indispensably necessary that the charge against him should have been supported by at least some proof of the dramatis personas. To have established the fact that Pullen played with other gamesters, of whom either James H. Wright or Jim Wright was one, would have been all-sufficient. Grant v. State, 89 Ga. 394. As this was not 'done, however, the present case is controlled by the decision pronounced by this court in Woody v. State, 113 Ga. 927-8, wherein one of the reasons as
Judgment reversed.