Allen v. State, 33806

• Decision Date: 23 February 1952
• Docket Number: No. 2,No. 33806,33806,2
• Citation: 69 S.E.2d 638,85 Ga.App. 355
• Parties: ALLEN v. STATE
• Court: Georgia Court of Appeals

Page 638

69 S.E.2d 638

85 Ga.App. 355

ALLEN v. STATE.

No. 33806.

Court of Appeals of Georgia, Division No. 2.

Feb. 23, 1952.

Syllabus by the Court.

1. 'When not made freely and voluntarily a confession is presumed to be legally false, and can not be the underlying basis of a conviction. The failure to object to such evidence does not give it probative value where it is shown, without dispute, that it was not freely and voluntarily made.'

2. Even excluding a consideration of the confession, to the admission of which there was no objection, the evidence was sufficient to authorize the judge, without the intervention of a jury, to find that the defendant was guilty of participating in the lottery charged in the accusation.

Wesley R. Asinof, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., John I. Kelley, Sol., and C. O. Murphy, all of Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

Gladys Allen was convicted in the Criminal Court of Fulton County of participating in a lottery. She filed her petition for certiorari in the Superior Court of Fulton County, which duly sanctioned the petition and issued the writ. The petition was based on the usual general grounds and one special ground, but as the trial court in its answer to the writ failed to certify the facts stated in the special ground, to which no exception was taken, counsel for the defendant in his brief in this court expressly abandoned the special ground. The superior court overruled the certiorari and the defendant excepted.

The State and counsel for the defendant entered into a detailed stipulation, which was introduced in evidence, as to the method and manner of operation of lottery in Fulton County and further stipulated that such a lottery was in operation in the county on the date of the defendant's arrest.

The evidence introduced on the trial is quite brief and is set out here in its entirety. O. L. Adams, an officer of the City of Atlanta testified: 'I had occasion to arrest the defendant on trial, Gladys Allen about March 7th, 1951, when Sgt. Mosely and myself were on Drummond Street at Newport and met a 1937 Dodge driven by John Henry Allen and stopped it. Sgt. Mosely went on Gladys' side and I searched the driver of the car, John Allen, and Sgt. Mosely asked Gladys to step out of the car which she did and this sack of original lottery tickets came from under her dress and we arrested them both and in police court, Gladys Allen claimed the lottery tickets and the judge fined her husband $53 for playing. That sack Exhibit 1 and contents is the sack that fell from under the defendant's dress. This sack was exposed when the defendant stepped from the car by it falling from her dress at the corner of Newport and Drummond Avenues, which intersection is in Atlanta, Fulton County, Georgia. The defendant did not make any statement about possession of these papers at the time as far as I know. I was on the other side of the car talking to her husband. (Cross examination) The driver of the car was John Henry Allen, Gladys' husband--anyway he had the same name as her. There was no one else in the car. I searched John Henry Allen on the driver's side of the car and didn't actually see what happened when Mr. Mosely got Gladys to get out of the car. Both doors were open but I did not actually see the sack fall from under her dress and she made no statement to me about it. When the case was tried in police court, John Henry Allen pled guilty to the city case and received a fine there. Gladys stated it was hers and not his and you [counsel for the defendant] were the lawyer down there too. I say she made that statement there though you [counsel for the defendant] might say she didn't. You were present there and spoke to me about it beforehand. When she was in police court she was in the presence of her husband. And the court made the case against her and not her husband, binding her over. I don't recall whether a plea was entered for her or not at the time but do recall talking to the judge about it and I told him if one of them wanted to claim it we would let them and let them pay a city fine and she was bound over. I didn't search her when she got out of the car and Sgt. Mosely didn't either. We don't search women. When she got out of the car the sack fell out when I was on the other side of the car. I was the width of the 37 Dodge away, several feet, and we had the width of the car between us with both doors open.'

George Mauldin testified for the State: 'There was a lottery operating in Fulton County, Georgia, on March 7, 1951.' Counsel for the defendant: 'We admit that these are lottery tickets and pick-up sheets used in the operation of the lottery; that this is lottery paraphernalia and also that Mr. Mauldin is qualified as an expert in the lottery to testify to that; we admit the manner and method of operation of the lottery in Fulton County, but deny the defendant's participation in it.' The Assistant Solicitor-General: 'We tender in evidence this paper sack and contents--lottery tickets and pick-up sheets, and we are prepared to show that these papers represent such paraphernalia as a pick-up man in the lottery would have in his possession.' Counsel for the defendant: 'We could also stipulate that, while denying she had any part in this lottery.' At this point the State rested its case.

The defendant made the following statement: 'I am not guilty of having those numbers and they didn't belong to me. When my husband saw the officers coming he had the numbers down under his seat and took them and said, 'Here come the mens,' and I said, 'What...