Forrester v. United States, 14417.

• Decision Date: 20 March 1954
• Docket Number: No. 14417.,14417.
• Citation: Forrester v. United States, 210 F.2d 923 (5th Cir. 1954)
• Parties: FORRESTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

210 F.2d 923 (1954)

FORRESTER et al. v.UNITED STATES.

No. 14417.

United States Court of Appeals Fifth Circuit.

February 23, 1954.

Rehearing Denied March 20, 1954.

Wesley R. Asinof, J. O. Ewing, Atlanta, Ga., for appellants.

J. Ellis Mundy, U. S. Atty., Harvey H. Tysinger, Lamar N. Smith, Asst. U. S. Attys., James W. Dorsey, U. S. Atty., Atlanta, Ga., F. Douglas King, Asst. U. S. Atty., Newman, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

BORAH, Circuit Judge.

AppellantsRalph W. Forrester, John L. Ellenburg and Kelly B. Harris, the defendants below, were tried and convicted in the district court by a judge and jury on a two count indictment.Count one charged that the defendants did wilfully and knowingly engage in the business of accepting wagers and conducting a lottery for profit without payment of the special tax as required by Section 3290 of the Internal Revenue Code,26 U.S.C.A., and did aid and abet each other and a person or persons to the grand jurors unknown, to do the same thing without paying this tax.Count two charged in part that the defendants did engage in the business of accepting wagers and conducting a lottery for a profit without registering with the Collector of Internal Revenue as required by Section 3291 of the Internal Revenue Code.

The questions for our determination on this appeal relate principally to the sufficiency of the evidence.More specifically appellants contend that the trial judge should have granted their motion for a judgment of acquittal because: (1) the Government's evidence did not show that either of the three defendants were engaged in the business of accepting wagers or that they conducted a lottery for profit after the effective date of the Federal tax and registration law, i. e., November 1, 1951; (2) the Government failed to prove a lottery was in operation subsequent to November 1, 1951; (3) the Government failed to connect up or identify certain lottery tickets introduced in evidence as those found at the time of arrest of defendants Harris and Ellenburg; (4) the Government failed to prove any case against the defendant Forrester, either by direct or circumstantial evidence.In addition to these specifications appellants also claim that the trial court erred in permitting the prosecution to prove by Robert Joiner, a Government witness in rebuttal that another Government witness, a Mrs. Wilcox had made statements to said witness, out of the presence of the defendants, concerning the facts to which she had testified in the trial of the case.

The material facts are these: On November 7, 1951, defendant Forrester came to the country residence of Mrs. Wilcox in DeKalb County, Georgia, and told her that he would like to rent a room for business purposes, to do some office work.He stated that he was renting the room for some people or his people, that he would be there only a couple of hours in the afternoon, and offered to pay $35.00 per week.These negotiations were had on a Wednesday.Mrs. Wilcox agreed to accept the offer and Forrester thereupon paid her $25.00 rental for the balance of that week.For the week which followed he paid the stipulated rental of $35.00.Thereafter and between November 7th and November 15th, Forrester came to the house on several occasions.During this period Mrs. Wilcox also saw the defendants, Harris and Ellenburg, come to her house.They would come in two cars in the afternoon about 2:00 P.M. and would stay about two hours.When they came they brought adding machines with them.Mrs. Wilcox could hear the machines when they were being operated and she had seen them through the door of the room.However, she did not know what they were doing as she was never in the room when the defendants were there and after they would go they would leave nothing in the room.Mrs. Wilcox frequently saw two women come to the room with the defendants Harris and Ellenburg.She had seen the women before as they like Forrester sometimes ate at the restaurant where she worked.However, she never asked either the men or the women what they were doing.Mrs. Wilcox never saw Forrester in the company of the other two defendants when they came to her house but they would be together some of the time as Forrester would come later after they were there though he never stayed after they had left.

On November 16, 1951, Captain Howard of the DeKalb County police force, acting upon information that a lottery was being checked at the Wilcox residence, went there with officers Hicks, Spruell and Broome at about 1:00 or 1:30 in the afternoon.They went in two cars.Hicks and Broome were in the police car and they drove to within a mile of the residence and then stopped on a side road while Spruell and Captain Howard drove on in Spruell's car to where they had a view of the house.When the two cars they were looking for showed up at the residence Spruell and Captain Howard went back and got in the police car and all then proceeded to the Wilcox home.The defendant Harris was standing on the side porch and, on seeing the police car started running.Broome and Spruell ran after him and Spruell finally...