McClary v. State

362 S.W.2d 457, 211 Tenn. 63, 15 McCanless 63, 1962 Tenn. LEXIS 340
CourtTennessee Supreme Court
DecidedNovember 9, 1962
StatusPublished
Cited by3 cases

This text of 362 S.W.2d 457 (McClary v. State) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClary v. State, 362 S.W.2d 457, 211 Tenn. 63, 15 McCanless 63, 1962 Tenn. LEXIS 340 (Tenn. 1962).

Opinion

Mb. Justice Burnett,

delivered the opinion of the Court.

In May, 1961, McClary was convicted in the Criminal Court of Hamilton County as a professional gambler. Upon this conviction the District Attorney General filed the present proceeding to forfeit McClary’s Thunderbird Ford automobile allegedly used in the furtherance of McClary’s avocation as a professional gambler. This action was filed pursuant to the provisions of Chapter 234 of the Public Acts of 1955, which has been codified and is found in the Supplement to the Code in sec. 39-2031, et seq. This Act is commonly known under the name of its author as the Johnson Act.

The trial court and the Court of Appeals found in favor of the State and forfeited this Thunderbird automobile to be sold in accordance with the statute. The Court of Appeals in affirming the trial court rendered an excellent opinion, finding fully the facts as shown by the criminal record under which McClary was convicted. We adopt this finding of fact as ours, because it correctly and succinctly states the facts as shown by this record. This finding is:

“The numbers racket is somewhat involved. First, there must be the saleman, or ‘writer’. He takes bets [65]*65from the bettors, using triplicate slips, one of which is given the bettor, and the writer gives one to the collector or ‘bag man’, or ‘mainest bag man’ who gives it to the banker. One is retained by the salesman. Snch tickets contain a symbol for the salesman, show the amount bet on each number. If number ‘hits’ the return is 500% to 600% of the amount bet. The odds against hitting seem to be greater than 1000 to 1. The winning number is determined by certain figures derived from the total sales of cases of eggs and total sales of pounds of butter on any certain market. It is evident that an automobile is of prime necessity for the salesman or writer to make his rounds, to the bag man in collecting from the salesman, and then getting the aggregate to the banker.
‘ ‘ The sales of these commodities are released about 10 A.M. each day; hence it is important that the bets be laid before that time and received by the banker before the cut off date; otherwise the banker could be victimized by numbers bet on after the aforesaid total sales had been announced.
“McClary, a resident of Cleveland, Tenn., had since 1954 been filing with the Federal Government tax returns and applications for registry to engage in wagering. The International Revenue Code defined wagering as (a) any wager with respect to sports events; (b) wagering pools on sports events; and (c) lotteries. He was assigned the number 62-170P.
‘ ‘ Copies of his monthly returns from August 30th, 1960, to March 31st, 1961, showed he was accepting wagers averaging a little less than $4,000.00 per month, upon which he paid promptly 10% to the [66]*66TJ. S. Treasury Department. The record does not show receipts prior to August, 1960. These returns were prepared for him by an attorney in Chattanooga.
“Of course, this demonstrates that he was engaged in gambling, authorizing among other things the conduct of a lottery.
“Now as to his activities in Hamilton County: He had been under ‘surveillance’ by Frank Mallicoat, a deputy sheriff, attached to the office of the District Attorney as a criminal investigator, who began his investigation some days prior to January 13th, 1961. On that date he began this surveillance of McClary and observed him in this Thunderbird coming out of Noah Reid Road into Bonny Oaks Drive. He saw Fred Abies (not identified in this record) in this same vicinity. This was about 10 A.M., which will be remembered as the target date in the butter and eggs racket. The next time he saw McClary was January 18th, about 10:05 A.M., when he observed McClary turning off of the Lea Highway into the Bonny Oaks Drive. He also again saw Fred Abies that same day. This was at the rock quarry, time not given. On Jan. 19th, he observed Abies traveling on Noah Reid. About 10:20 A.M. McClary came out of Bonny Oaks Drive and went North on No. 11.
“On Jan. 20th, 1961, Mallicoat had a warrant for the arrest of McClary and undertook to arrest him thereon at an underpass on Bonny Oaks Drive. Malli-coat was in plain clothes and so far as the record shows was not known to McClary. However, his car was equipped with the usual two way radio equipment and antenna used by police officers, although not other[67]*67wise marked. When lie was undertaking this arrest Ms car was blocking this underpass. McClary ap-roaehed about 10:15 or 10:20. Mallicoat got out of Ms car to serve the warrant and when he did so Mc-Clary threw his Thunderbird in reverse, and after turning, left at a high speed. Mallicoat then quickly turned his car and followed at the highest speed he could make which was somewhat less than the Thunderbird. He (Mallicoat) was making about 100 miles per hour, but the Thunderbird was ‘moving out. It was leaving the car that I was driving because that was as fast as I could travel. ’ But he did get close enough to see butter and eggs tickets floating in the air, some eight or ten feet in the air in the center of the road then being traversed by the Thunderbird, which dodged oft into a side road. Mallicoat couldn’t make this turn, ran past and after getting some gas went back to where he had seen these tickets floating in the air and found a number of them on the road. This was about 2/10ths of a mile from where McClary turned off of this road. He then followed this turn-off road and found the Thunderbird had slid off of the road but McClary had left, no doubt having business elsewhere.
“Some of these tickets were for butter and eggs (B.E.) some were for ‘stock, i. e., covering a lottery on stock sales, and some were a combination of both butter and egg and stock. Some bore date of Jan. 20th, 1961, the day of the arrest.
‘ ‘ This is all the evidence; McClary did not testify.
[68]*68“Was it sufficient to establish that this automobile was being used in conducting a lottery in Hamilton County?
“We hold that it was. McClary was a professional gambler. So far as the record goes he had no other avocation which would require his presence in Hamilton County on these dates so near the crucial cut off time of 10 A.M. When he saw this car of Mallicoat blocking the underpass he immediately backed up, turned and made a fast exit, and in so doing began to get rid of the evidence of his crime by throwing the slips of the bettors out of the car window.”

The two lower courts have concurred in finding that the use of this Thunderbird automobile in the professional gambling of McClary was an integral part of the gambling operation that he was conducting in Hamilton County. The facts fully support such a finding and conclusion. The Court of Appeals likewise found, and such a finding is supported by this record, that “an automobile is a necessity for the operation of a lottery of this nature.”

Section 39-2033, T.C.A., gives the definitions of various and sundry things which are applicable to the Act, such as “gain”, “gambling”, “professional gambling”, etc., and one subdivision thereof says:

“(7) ‘Gambling premise’ means any building room, enclosure, vehicle, vessel or other place used or intended to be used for professional gambling.

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Bluebook (online)
362 S.W.2d 457, 211 Tenn. 63, 15 McCanless 63, 1962 Tenn. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclary-v-state-tenn-1962.