Drewry v. State, A91A0760

• Citation: 411 S.E.2d 898,201 Ga.App. 674
• Decision Date: 30 October 1991
• Docket Number: No. A91A0760,A91A0760
• Parties: DREWRY et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 898

411 S.E.2d 898

201 Ga.App. 674

DREWRY et al. v. The STATE.

No. A91A0760.

Court of Appeals of Georgia.

Oct. 30, 1991.

Groover & Childs, Denmark Groover, Jr., Frank H. Childs, Jr., R. Robider Markwalter, Christina L. Hunt, and Althea L. Buafo, Macon, for appellants.

Willis B. Sparks, III, Dist. Atty., Sharon T. Ratley, and Thomas J. Matthews, Asst. Dist. Attys., for appellee.

ANDREWS, Judge.

Drewry, Harrison, Sparkman, and Thomas, appellants, and Frazier, who did not join the appeal, were indicted for one count of violating the Georgia Racketeer Influenced and Corrupt Organizations statute, OCGA § 16-14-1 et seq. and 34 counts of commercial gambling, OCGA § 16-12-22(a)(6). The acts charged as incidents of commercial gambling also formed the basis of the predicate acts alleged in the RICO count. Defendants appeal, after grant of their interlocutory application, from denial of numerous general and special demurrers to the indictment.

1. The first two enumerations deal with denial of general demurrers to the RICO count and to the 34 commercial gambling counts.

(a) As to the RICO count, the claimed infirmity is that the indictment fails to explicitly set out the "purpose" of the enterprise, which is alleged to be an association in fact among the defendants, who are individually identified in the RICO count.

" 'The true test of the sufficiency of an indictment that will withstand a general demurrer is laid down by Judge Bleckley ... as follows: "If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good." ' [Cit.]" Gower v. State, 71 Ga.App. 127, 128(1), 30 S.E.2d 298 (1944). See State v. Eubanks, 239 Ga. 483, 485, 238 S.E.2d 38 (1977).

Pretermitting the fact that defendants have cited no authority and we are unaware of any which requires that the purpose of the enterprise be spelled out in detail in the indictment, a purpose is set out in the RICO count. It alleges that the defendants did "endeavor to conduct and participate in, directly and indirectly an enterprise ... for the purpose of pecuniary gain," through a pattern of racketeering activity.

An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer. Gaines v. State, 80 Ga.App. 512, 517, 56 S.E.2d 772 (1949). A group of individuals associated in fact sufficiently alleges an enterprise under OCGA § 16-14-3(6). Chancey v. State, 256 Ga. 415, 417, 349 S.E.2d 717 (1986); see United States v. Cagnina, 697 F.2d 915, 920(1) (11th Cir.1983). There was no error in overruling this demurrer.

(b) The claimed infirmity in the commercial gambling counts is that the allegation of a "numbers game" or "bug" as a "lottery" conflicts with the definition of lottery in OCGA § 16-12-20(4) and therefore does not allege commercial gambling, defined in OCGA § 16-12-22(6). "Lottery" is defined by the former as "any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win such prize, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or by some other name." Commercial gambling is defined by the latter as "set[ting] up or promot[ing] any lottery" as well as selling or possessing for transfer evidence of participation in a lottery.

The commercial gambling counts allege the defendants did "promote, encourage, and assist a lottery based upon wagers and bets placed on a three digit number with the winning combination ... derived daily from the New York Stock Exchange" or the winning numbers in the Illinois Lottery.

Both parties present factual assertions in their briefs to support their arguments that the "bug" or "numbers game" alleged is or is not a lottery as defined in the statute. This plainly shows that the issue is not determinable by demurrer without considering the evidence to be presented. The...