Acklen v. State

• Decision Date: 03 March 1954
• Citation: 32 Beeler 314,267 S.W.2d 101,196 Tenn. 314
• Parties: , 196 Tenn. 314 ACKLEN et al. v. STATE.
• Court: Tennessee Supreme Court

Page 101

267 S.W.2d 101

32 Beeler 314, 196 Tenn. 314

ACKLEN et al. v. STATE.

Supreme Court of Tennessee.

March 3, 1954.

D. L. Johnson, H. B. Weimar and Thomas L. Cummings, Nashville, for plaintiffs in error.

Knox G. Bigham, Asst. Atty. Gen., for the State.

BURNETT, Justice.

The plaintiffs in error were convicted of a conspiracy to violate various gaming statutes. Acklen's punishment was fixed at a fine of $750 and a six months workhouse sentence. The others received a fine of $100 and a three months workhouse sentence. The variation in fine is probably due to the fact that Acklen was the principal and the others were his subordinates.

The District Attorney General of Davidson County assigned one John Cole to investigate an alleged numbers racket in this County. After some investigation Cole learned that one of the defendants, League, was in possession of a Federal Wagering Stamp. He also received information concerning a certain automobile and a place where pickups were made each day. In March, 1952, he, Cole, parked his automobile at Union Street and Capitol Boulevard and from there he saw the plaintiff in error Cartmell coming to the back of the Hermitage Hotel and look up and down the street several times. After this had occurred several times League drove up and double parked his car back of the Hermitage when Cartmell then came and got in the car with him for a few minutes. The officer saw papers pass between these two men. After these papers had been passed League drove off at a rapid rate of speed and did not slow down as he crossed Union Street. The officer then started after him and turned on his siren and as a result of this League stopped. The officer asked League for his license and as a result of this request League reached in his shirt pocket and pulled out his Federal Wagering Stamp and some numbers tickets, which he handed to the officer. The officer says that he was asking for the driver's license. After these things were handed to the officer by League, League was arrested. Later, very shortly after the arrest of League, Cartmell was arrested and the two men were taken to the District Attorney General's office and after being talked to there for some time gave confessions which are to the effect that they dealt in numbers tickets. League stated that he worked for Acklen and that he picked up for a number of writers. Cartmell stated that he was a writer and that he had been turning in his tickets and money to League for about a year.

In addition to this testimony of Cole and the confessions referred to by these two parties, the State introduced certified photostatic copies of applications for Federal Wagering Stamps executed in the names of all the plaintiffs in error except Cartmell. On Acklen's application Turner, Kennedy, Richmond and League were listed as employees. On each of the other applications Acklen was listed as the principal in the wagering business. In addition to the wagering stamps there were also exhibited wagering tax returns filed in the name of Acklen for the months of November and December, 1951, and January, 1952. In each of these returns it was shown that he had collected quite a considerable amount of money for those three months from the wagering business. The returns are based on and he paid into the Federal Government 10% of the amount of money he received. The first month he paid the Government $275.91, the second month, $273.73, and the third month, $348.69.

The plaintiffs in error offered no proof on their behalf but rested at the conclusion of the above evidence offered on behalf of the State.

We will first consider the third assignment of error wherein it is contended that the names appearing on the Federal Wagering Stamp application constitute insufficient identity of the plaintiffs in error as being the parties guilty of the crime charged. The imposition of the 10% Excise Tax is imposed by U.S.C.A., Title 26, § 3285 et seq., and the Occupational Tax of $50 a year for each person engaged in the wagering business is imposed by Section 3290. This Court considered these sections in passing on a City ordinance of the City of Chattanooga which imposed a fine on one possessing these Federal Wagering Stamps in the case of Deitch v. City of Chattanooga, 195 Tenn. 245, 258 S.W.2d 776. In the very excellent brief filed on behalf of the plaintiffs in error it is forcibly and ably contended that the names appearing on these stamps are not sufficient identity to support a conviction of the parties without other proof. A number of authorities are cited in behalf of this position which are indeed persuasive. The State in answer to this contention has likewise filed an able brief on the question wherein it is conceded that the authorities on the question are about equally divided. These authorities offered on behalf of both the plaintiffs in error and the State are annotated in 11 A.L.R.2d 884, and are in cases in subsequent offender prosecutions but as a matter of fact the reasoning there should be the same as is to be applied herein. Obviously the State relies upon those authorities which say that the identity of the name of the defendant and the person previously convicted is prima facie evidence of the identity of the person, and in the absence of rebutting testimony, supports a finding of such identity. To the contrary the plaintiffs in error cite those authorities which say that mere proof of identity of names is not sufficient proof in itself to justify the finding of identity of person and the imposition of an enhanced penalty. In the first place the burden is on the prosecution in the case before us to establish the identity of accused as the one that is listed in these gambling stamps. This obviously is a question of fact for the jury. The circumstances in the instant case, it seems to us, justify a presumption of identity of person from the identity of name. In this case the signature of the plaintiffs in error is purportedly affixed and was signed by these persons when they applied for the stamp. On each application a Nashville address is given. It seems too, to us that these questions of whether or not these were the parties listed in these applications for the stamps were the parties who were there in court and charged with this offense was a question which was peculiarly within the knowledge of each of the plaintiffs in error. Whether or not he was the one who made the application for the stamp, whether or not he lived at that address, whether or not that was his signature. All of these questions could have been very easily answered by the plaintiffs in error or the implication thereof denied by the plaintiffs in error without the plaintiffs in error themselves taking the witness stand--these things if not true could have very easily been shown by others. Therefore it seems to us that the offering of these applications with the names affixed, etc., as above indicated raised a prima facie presumption that the parties then before the court are the same as those mentioned in these stamps. We think therefore that the court and jury were justified in considering against each of these parties the fact that they did not offer countervailing testimony. These things certainly offered some substantial credible testimony, under the circumstances, that the parties named in these stamps, addresses given, etc., were those charged in the indictment. Thus without anything being offered to the contrary this question must be resolved against the plaintiffs in error.

Thus it must appear that a conspiracy is abundantly proven. This Court said in Brinkley v. State, 125 Tenn. 371, 386, 143 S.W. 1120, 1123:

'There is a direct and open connection between the possession of a federal license authorizing the retail sale of intoxicating liquors and the ultimate fact of such sale. The interests of men are such, and experience teaches, that they do not ordinarily incur the expense and trouble of procuring license to engage in the sale of intoxicants, unless they intend to do so. Apart from the statute making the possession of such license prima facie evidence of the fact of a sale, the inference might well be drawn, in the absence of all rebutting proof, that one who pays the fees and possesses himself of such license is engaged in the sale of intoxicants.'

We in Deitch v. City of Chattanooga, supra, used this identical quotation as applicable to the situation there of those possessing stamps as herein possessed. What this Court long ago said above in reference to a Federal Liquor License obviously and of course is equally...