Smith v. State

Alabama Court of Appeals

Smith v. State

136 So. 2d 907, 41 Ala. App. 487, 1961 Ala. App. LEXIS 333

CourtAlabama Court of Appeals

DecidedAugust 22, 1961

Docket5 Div. 593

StatusPublished

Cited by1 cases

This text of 136 So. 2d 907 (Smith v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. State, 136 So. 2d 907, 41 Ala. App. 487, 1961 Ala. App. LEXIS 333 (Ala. Ct. App. 1961).

Pincite

Opinions

CATES, Judge.

This is an appeal from a nonjury conviction of possessing lottery paraphernalia contrary to Act No. 799 of September 11, 1951 (Acts 1951, p. 1398).

The sheriff seized on the defendant’s person a yellow rectangular slip (Exhibit 1) bearing:

“New

“Gold Field

9956

26

58

71

67

11

74

45

24

21

20

16

47”

Also he took a pad (Exhibit 2) with numbers put on the sheets by pencil, carbon and printing.

An expert witness identified Exhibit 1 as advertising a numbers game. He testified that Exhibit 2 was a writer’s book, lottery paraphernalia.

Act No. 799 does not make the mere possession of lottery paraphernalia an offense. The person charged must also be shown (1) within three years last past and either (2) to be (or have been) actually engaged in, etc., the (a) setting up, (b) conducting or (c) operation of a numbers game or other like lottery, or (3) to be (or have been) an employee of a person meeting the definition of (2).

The evidence as to the writer’s book from which the court could have inferred that the defendant was soliciting, collecting and — if ever required — paying off and within the three years before complaint was sufficient.

It was immaterial to the issues for the State to ask the sheriff if a lottery (“a bug racket”) was operating in Macon County, Alabama. However, objection came after the answer and the grounds specified were not apt.

Under our view the location of the operation of the lottery is not confined to the venue of the trial for possessing the paraphernalia. If it can be shown that the possessor in the past three years had (as more precisely put in the Act)' anything to do with, or worked for the operator of, such a lottery, whether in Hong Kong, Timbuctoo or anywhere else, then conditions (1) and (2) or (3) above are met.

[489]*489The judgment with its sentence to payment of $500 fine is due to be

Affirmed.

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