Court: Court of Appeals of Georgia; November 4, 1958; Georgia; State Appellate Court
Defendant Estes was convicted in the Fulton County Criminal Court on a nine-count indictment for conducting separate lotteries on specific dates, leading to nine consecutive sentences. He appealed the Superior Court's denial of his certiorari petition, arguing that the verdicts were unsupported by evidence. The case differs from typical single-count lottery indictments, as each count required distinct proof of the three essential elements of a lottery: consideration, chance, and prize. While evidence demonstrated the first two elements for each date, it failed to establish that a separate prize was associated with each count; it suggested there might only be one prize overall. For the nine counts to be valid, evidence had to confirm nine distinct prizes, which it did not. Although the evidence generally indicated the operation of lotteries, it lacked specificity regarding prize determination for each count. The State's reliance on precedents to affirm the conviction was unpersuasive, as those cases did not conflict with the requirement for distinct evidence supporting each count in this case. Ultimately, the court found the evidence insufficient to support any count of the indictment.
Separate counts in an indictment require sufficient evidence for each count, demonstrating that they relate to distinct transactions. The defendant, Willie Harrison Estes, was convicted on nine counts of operating a lottery, with each count alleging a separate incident on different dates between February 18 and March 1, 1957. The court emphasized that evidence must support each conviction to avoid double jeopardy, as outlined in the Constitution. Estes received consecutive twelve-month sentences for each count. Dissatisfied with the trial's outcome, he petitioned for a writ of certiorari, claiming errors during his trial. The Criminal Court's judge responded, confirming that all legal requirements were met, including timely requests to charge and bond compliance. The Superior Court of Fulton County denied Estes's exceptions and overruled his certiorari petition, prompting this review, where it was determined that the Superior Court erred in its decision, leading to a reversal of the judgment.
John Hopkins, a witness for the State, testified that he was an investigator with the Solicitor-General's office in Fulton County for approximately 14 years and had extensive knowledge of the lottery known as the "numbers game." He explained that the game, sometimes referred to as the "bug," is run by individuals called "bankers" who hire "writers" to solicit bets on three-digit numbers. These numbers are derived from daily bond and stock sales. Bets can range from a penny upward, and if a player's number matches the day's sales, they receive a payout of 500 to 1, minus a 10 percent fee to the writer.
Writers are compensated with a salary based on their sales, typically 25 percent, and each writer has a unique identifier, such as X-1 or B-3. The betting process involves a lottery book with three types of sheets; the yellow sheets are submitted to pickup men, the tissue sheets are retained by the writers, and the white sheets are given to the players. Although a lottery book is standard, alternative methods for recording bets may also be utilized. Writers must submit their records by 2 PM to the pickup men, who then hand over the proceeds to a "drag man," responsible for delivering tickets to a secret headquarters where the results are determined.
On February 18, 1957, the lottery was actively operating in Fulton County, a fact corroborated by looking at the calendar for that year. Despite objections from the defendant's counsel regarding the admissibility of this testimony, the court allowed it, recognizing Hopkins' expert status. Subsequent dates also confirmed the ongoing operation of the lottery game in the area.
On cross-examination, a witness testified he was unaware of who operated in the lottery business on February 18, 1957, or other specified dates. Jake Phillips, a pickup man in the lottery since 1953, worked for Willie Estes and provided details on his role, including starting work at 6 AM, collecting numbers, and reporting to Estes or another station man. He mentioned receiving a ten percent commission and handling winnings, as well as being arrested twice during his employment, with Estes securing his release on bond. Phillips confirmed his involvement with the lottery operation on multiple dates in February and early March 1957, and indicated that he also worked for Catherine Clark, who had been engaged in the lottery since 1955. Clark described her process of taking bets and receiving payments for hits, noting that Phillips or his associates would pick up tickets, with Estes occasionally covering payouts when Phillips failed to do so. Clark also mentioned that Estes assisted her financially with a fine and that she had participated in the lottery until March 1957, though she stopped being a writer after December 1956. J.W. Gilbert testified that the defendant signed bonds for lottery operators, justifying his actions by stating the closure of the lottery would affect many workers. Dorris Austin, a probation officer, noted the defendant provided money to Clark. The defendant denied involvement in the lottery business, claiming to have befriended Clark. Relevant statutes outline that selling or facilitating lottery tickets is a misdemeanor, as is maintaining a lottery scheme.
Phillips testified that he worked for Willie Estes from 1953 until March 1957 as a pickup man in a lottery operation, receiving ten percent of the proceeds for his work. He described the process of collecting numbers and turning in bets at the Odd Fellows Building, where he was responsible for paying off winners. Phillips was arrested twice during his employment, with Estes providing bond on both occasions. He confirmed his engagement in the lottery operation on several specific dates in early March 1957. Catherine Clark also testified about her involvement in the lottery since 1955, stating that she took bets and that Phillips picked up tickets and paid her winnings, sometimes with Estes directly paying off.
The document asserts that the evidence presented is sufficient to support a conviction under all counts of the indictment. It references legal precedents establishing that a defendant can be convicted for engaging in any aspect of operating a lottery, even if the transaction is incomplete. The text emphasizes that defendants can be found guilty as principals in misdemeanors without distinction between degrees of involvement, and it is unnecessary to prove the completion of the lottery operation or that a gaming device was actively used, as mere possession or involvement suffices for conviction.
In Elder v. Camp, 193 Ga. 320, the Supreme Court established that merely possessing a device for gambling, which is illegal, is sufficient to demonstrate its illegality without needing to prove its actual operation. The indictment does not require evidence that a lottery was conducted on a specific day or that the lottery was completed. In the current case, there is ample evidence indicating that the defendant was actively operating a numbers racket on the days cited in the indictment, supported by witness testimonies. The decision also distinguishes this case from Williams v. State, where a conviction was overturned due to insufficient evidence that the machine was functioning as a gambling device. The court clarifies that, unlike in Williams, there is clear testimony showing the operation of the numbers racket, which involves collecting money and determining payouts based on stock market returns, regardless of whether actual payouts occurred that day. The majority opinion's requirement for verifying stock market totals on the specific days is countered by references to Atlanta newspapers confirming such totals were published. Overall, the evidence supports the conviction for participation in the numbers racket, as the operation does not need to be fully executed on the same day.
The indictment charges the defendant with participating in a numbers racket on specific dates from February 19 to March 1, 1957, excluding February 22 (Washington's Birthday) and weekends when the stock market was closed. Evidence indicates that bets were placed and stock market totals were recorded, supporting the claim that the defendant engaged in this activity on each day specified in the indictment. Each participation in the lottery constitutes a separate offense under the law. The text critiques a majority opinion that requires proof of stock market totals for each day to establish participation, arguing that this contradicts established legal precedent which does not necessitate proof of an actual drawing. The excerpt references previous cases, including Thomas v. State and Morgan v. State, to illustrate that maintaining a scheme is sufficient for prosecution and that each act of participation can be considered a distinct offense, particularly when continuity of the act is broken.
The court found that the accused committed two distinct offenses of carrying a concealed pistol at his home, both in the presence of witnesses. The first offense occurred when he entered the house with the concealed pistol, which ended when he placed the pistol on the mantel. The second offense was committed when he concealed the pistol again and left the house. Both offenses occurred on the same day. The court related this to lottery violations, noting that each act related to operating a lottery completes a separate crime depending on whether it occurs on the same or different days. The court emphasized that separate offenses, even if similar, can be charged if committed on different days. Previous cases, such as Loomis v. State and Bryan v. State, supported this principle, showing that similar offenses could result in multiple convictions. The current case involves sufficient evidence for convicting the defendant of participating in an illegal lottery. The potential economic impact of the case was noted, as a ruling against the defendants could lead to significant job losses, suggesting that a ruling in their favor might encourage increased participation in illegal lottery activities due to the perceived difficulty in proving involvement.
Smith v. State, 74 Ga. App. 777 (41 S.E. 2d 541) contradicts the majority opinion's interpretation of the case. The defendant was convicted on six identical counts of operating a lottery, differing only by date. The court noted that error was assigned because the jury was instructed that each count represented a separate offense, while the defendant argued that only one offense was charged. This argument was rejected based on precedent from Martin v. State, 73 Ga. App. 573, where the indictment was similarly structured. Each count in the current indictment specified a date as essential to the transaction, distinguishing it from others. The prosecution opted to charge specific offenses on distinct dates rather than a general offense covering the two-year statute of limitations. This structure allows for multiple punishments, as each count represents an individual misdemeanor offense. The court's analysis suggests that operators of the lottery are unlikely to choose dates without a corresponding stock market report, reinforcing the legitimacy of the charges on those specific days.
Lottery operators provide participants with a chance to win, albeit slim, as evidenced by a 500 to 1 estimated probability of winning. The claims made in paragraphs 1, 2, and 3 of the certiorari petition regarding evidence lack merit. In paragraph 4(a), it is asserted that the jury verdict was contrary to law and evidence due to the impeachment of witness Jake Phillips, who had a felony conviction. However, it is established that even if a witness is impeached, it remains a jury's role to assess whether their testimony is corroborated. Jurors can believe an impeached witness's testimony without corroboration, as supported by legal precedents.
Paragraph 4(b) challenges the court's admission of State witness John Hopkins's testimony regarding the existence of a lottery in Fulton County. The defendant's counsel objected, arguing the testimony was opinion-based and lacked support from cross-examination. The court overruled this objection, citing similar precedents where such testimony has been deemed admissible. The Supreme Court has affirmed that witnesses can express opinions if they provide factual bases for their beliefs.
Paragraph 4(c) alleges the court improperly expressed an opinion about evidence related to the defendant's alleged payment to witness Catherine Clark for a fine. This assignment of error is also deemed unmeritorious.
Counsel for the defendant moved to strike a question posed to witness Catherine Clark, claiming it was leading. The court ruled that the question was a repetition of an earlier one that had not been objected to. Clark testified about her involvement in the lottery game, stating that while Phillips typically handled payments, the defendant, Willie Estes, paid her a few times. She also mentioned a $300 fine imposed after her arrest, half of which was covered by her husband and nephew, with Estes providing the other half. Following her testimony, the solicitor asked if Estes had given her $150 for the fine, prompting the defendant's counsel to object again, but the court overruled, stating it was repetitive. During cross-examination, Clark confirmed she received a $150 loan from Estes on December 6. The court found no error in refusing to strike the question.
Additionally, the defendant's counsel argued for a mistrial based on what they perceived as prejudicial remarks made by the solicitor, which they believed improperly questioned the defendant's character. The court denied this motion and instructed the jury to ignore the solicitor's statement, emphasizing it was irrelevant to the case. The court referenced Dorsey v. State in its ruling. A further complaint arose from the solicitor's argument that the defendant did not present witnesses to support his claim of innocence, implying guilt. However, the court deemed the solicitor's comments insufficient for a reversal, especially given the testimony from multiple witnesses confirming the defendant's involvement in the lottery and the jury's instructions to disregard the solicitor's remarks. This assignment of error was therefore not considered valid.
Error is assigned in Paragraph 4 subparagraph (e) due to the court's refusal to grant a mistrial based on the defendant's testimony regarding a discussion with an investigator about the lottery charges. The investigator's testimony indicated that the defendant claimed the solicitor's office would "put fifteen thousand people out of work" if the lottery was disrupted, and that this testimony did not significantly harm the defendant's case. Subparagraph (f) contends that the court erred by not providing a jury instruction on the essential elements of operating a lottery, despite a written request. However, the court's overall instructions were deemed sufficient.
In subparagraph (g), error is alleged concerning the defendant being charged with operating a lottery on nine separate counts, arguing that the offense is continuous and should not result in consecutive sentences. Citing precedents from Martin v. State and Smith v. State, the court upheld that each count represented a separate offense. The court found no errors in sentencing the defendant consecutively for each count, except for one issue: the state failed to prove that the bets taken on specific days were related to outcomes on those same days. This lack of evidence prevents classifying the activity as a completed crime for each count. The concurrence emphasizes that this case raises a unique point not previously addressed by appellate courts, warranting a special concurrence rather than a dissent.
