In re Smith v. State

136 So. 2d 911, 273 Ala. 183, 1962 Ala. LEXIS 301

• Court: Supreme Court of Alabama
• Decided: January 18, 1962
• Docket: 5 Div. 755
• Status: Published

Opinion

LAWSON, Justice.

Petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals in the case of Smith v. State, 136 So.2d 907.

The evidence which is set out m the opinion of the Court of Appeals shows beyond peradventure that “lottery paraphernalia” as defined in Act No. 799, approved September 11, 1951, Acts 1951, p. 1398, was found in the possession of the petitioner.

Petitioner asserts, however, that the Court of Appeals erred in sustaining her conviction of the offense made unlawful by Act No. 799, supra, in that there was no evidence going to show that within three years previous to the time such paraphernalia was discovered in her possession that she had been “actually engaged in or connected with the setting up, conducting or operation of any form or type of lottery commonly known as a numbers (or number) game or policy game,” or that she had been “an employee of a person or persons who are or have been within three years next preceding engaged in setting up, conducting, or operating” any such game or games.

We cannot agree with this insistence. In our opinion the testimony of the expert witness, Johnson, to the effect that the book (State’s Exhibit 2) was actually kept by the “writer,” the person who sells the chances, was sufficient to make out a prima facie case that the petitioner was engaged in or connected with the “setting up, conducting or operation” of the type of lottery commonly referred to as the numbers or policy game. Salomon v. State (Boullemet v. State), 28 Ala. 83.

Writ denied.

LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.