Rowe v. State , 68 Ga. App. 6 ( 1942 )

Denial of a new trial after conviction of operating a lottery was not error.

DECIDED SEPTEMBER 15, 1942. The defendant was convicted of the offense of operating a lottery, known as the "number game." She was tried by a judge of the criminal court of Fulton County, presiding without the intervention of a jury. Her certiorari was overruled and that judgment is assigned as error.

The evidence contained in the petition for certiorari, plus that set forth in the untraversed answer of the trial judge, was sufficient to authorize the judge to find that the lottery was being operated in the home and on the premises of the defendant. Such evidence raised a presumption that the defendant was aiding and abetting in the operation of the lottery, and the judge was authorized to find that the presumption was not rebutted by any evidence adduced. It is true that "Evidence of mere presence at the place where the offense is being committed, there being nothing to show the defendant's participation in the illegal act, is insufficient to authorize conviction" (Jones v. State,64 Ga. App. 308, 13 S.E.2d 91), but that ruling is not applicable to the facts of the instant case, and there is no conflict between that decision and our present ruling. The defendant's conviction was authorized by the evidence, and the special assignments of error in the petition for certiorari having been expressly abandoned in the brief of counsel for the plaintiff in error, the judgment overruling the certiorari must be, and is,

Affirmed. MacIntyre and Gardner, JJ., concur.