Hackerman v. State
| Decision Date | 09 July 1949 |
| Citation | 223 S.W.2d 194 |
| Parties | HACKERMAN v. STATE. |
| Court | Tennessee Supreme Court |
Rehearing Denied Oct. 15, 1949.
Error to Criminal Court, Davidson County; Charles Gilbert, Judge.
Marcus Hackerman was convicted of lottery by means of a numbers game and unlawfully carrying a pistol and he brings error.
Affirmed.
W. E. Norvell, Jr., H. Frank, Taylor, Norman R Minick, Wm. N. Dearborn, C. D. Berry, all of Nashville, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
Defendant Marcus Hackerman, was convicted of lottery by means of a numbers game, and unlawfully carrying a pistol, with a fine of $1,000 and a 90-day jail sentence on the lottery charge and a fine of $50 and a 90-day jail sentence for carrying a pistol; the two jail sentences to run concurrently.
In June, 1947, Raymond Cannon, a constable of Davidson County procured a search warrant from a judge of the General Sessions Court for the search of defendant's car. Armed with this search warrant, he stopped defendant's car on West End Avenue, in the City of Nashville, and there found a quantity of money, a large number of lottery tickets apparently sold to persons unknown, and other indicia used in lottery operations.
The search warrant is vigorously attacked, and its legality is before us for our determination. The affiant Cannon stated in the affidavit to the search warrant, that he had reason to believe defendant had in his possession 'gambling equipment, paraphernalia, adding machines, numbers tickets, numbers books, and other material used in conducting a lottery.' The affiant further stated that 'said gaming devices' were located in the automobile described therein. The information relied on for the issuance of the warrant was to the effect that defendant would meet certain Negro pickup men who would deliver to him lottery tickets and money for the day's work, which he (defendant) would then take home in his car.
The search warrant reads, in part, as follows:
(Italics ours.)
The affidavit and the warrant appear on the same printed form which is generally used for apprehending those who possess gaming devices denounced by our statute. Defendant contends that there is a variance between the affidavit and the warrant itself. This contention is based on several unreported cases of this Court where it was held that lottery or numbers tickets, in themselves, do not constitute a gambling device. Defendant further contends that under the ruling of this Court the doctrine of ejusdem generis should be applied in construing the term 'gaming devices' as used in the face of the warrant, and since the warrant does not by express provision incorporate the details of the affidavit, it is void.
In Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, it was held that the affidavit is not a part of the warrant. The Court further observed that constitutional rights were involved and the requirements of the statute should in every material detail be held mandatory.
Defendant relies upon four unreported cases of this Court: Wyndham v. State, [1] Hamilton criminal; Conley v. State, [1] Hamilton criminal; White v. State, [1] Hamilton criminal (these three filed November 27, 1937); and Keith v. State, [1] Hamilton criminal (filed January 5, 1946). In all of these cases the facts were that the respective defendants were found to have in their possession pads, sheets of paper, and similar articles that could in no sense, taken by themselves, be called gambling devices.
In the present case, the affidavit fully sets out the articles possessed by defendant, and his mode of operating his nefarious business. We cannot conceive how the affidavit could be more complete and definite. The question here is whether any part of the affidavit can be looked to in determining the validity of the warrant itself.
In Ellison v. State, 186 Tenn. 581, 582-583, 212 S.W.2d 387, 388, this Court said:
Bearing in mind that this is a printed form generally used in gambling offenses, the warrant itself states, 'and which information is set forth in said affidavit.' While the language of the warrant does not expressly refer to the incorporation of the affidavit in the warrant proper, it does refer to the information possessed by the affiant. We think this reference is sufficient.
In O'Brien v. State, 158 Tenn. 400, 14 S.W.2d 51, the Court held that the description in the affidavit was made a part of the warrant by reference; and in Minton v. State, 186 Tenn. 541, 212 S.W.2d 373,
the Court stated that the warrant did not adopt the description in the affidavit.
In the warrant before us definite reference is made to the information possessed by the affiant. Although not expressly incorporated in the warrant, we think such reference is sufficient to direct the attention of the person executing it to such portion of the affidavit as may be referred to in...
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