State v. Shermer, 725.

• Decision Date: 03 January 1940
• Docket Number: No. 725.,725.
• Parties: STATE. v. SHERMER et al.
• Court: North Carolina Supreme Court

6 S.E.2d 529
216 N.C. 719

STATE.
v.
SHERMER et al.

No. 725.

Supreme Court of North Carolina.

Jan. 3, 1940.

Appeal from Superior Court, Forsyth County; Filix E. Alley, Judge.

W. D. Shermer and A. W. Wray were convicted of promoting, setting on foot, and conducting a lottery, and they appeal.

Affirmed as to defendant Shermer, and reversed as to defendant Wray.

Criminal prosecution instituted in the municipal court of the City of Winston-Salem in which the defendants are charged with promoting, setting on foot and conducting a certain lottery where a game of chance is played in violation of C.S. §§ 4428, 4429

There was a verdict of guilty in the municipal court. From judgment thereon defendants appealed to the Superior Court

[6 S.E.2d 530]

In the court below the jury returned a verdict of guilty as to each defendant. From judgment on the verdict the defendants appealed.

Phin Horton, Jr., and Fred M. Parrish, both of Winston-Salem, for defendants appellants.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton, Asst. Attys. Gen., for the State.

BARNHILL, Justice.

The defendant Shermer conducts a place of business on Chestnut Street in Winston-Salem known as the Station Lunch. The defendant Wray was a waiter or assistant therein. On 29 July, 1939, police officers of the city, armed with a search warrant, searched the building in which the Station Lunch was conducted. They found a tip board, lottery tickets and advertisements of lotteries in a little shed just at the back door, about 10 feet from the back door, of the building. The lottery tickets were found at the top of a stairway which pulls down from the ceiling and which cannot be entered without unlocking it. The rear of other buildings abutted the area way in which the shed was located.

On a shelf back of the counter in the cafe the officers found a book entitled "Gay Games", 5 Ingersol watches, a hairbrush set, money in a paper sack underneath some papers and clothes, pasteboards with scores of regular baseball games and envelopes addressed to each of the defendants, containing advertisement of skin-games and all sorts of lottery boards and other lottery advertisements. The advertising matter was stacked in a neat pile on the shelf behind the counter. Some of the flaps of the envelopes were opened. The money found was concealed and was not in the cash register. Among the advertisements there was some from the same company which issued the lottery tickets found in the shed.

At the time the officers...