Polite v. State

80 Ga. App. 835 (1950)

57 S.E.2d 631

POLITE v. THE STATE.

32836.

Court of Appeals of Georgia.

Decided February 9, 1950.

Julius S. Fine, for plaintiff in error.

Andrew J. Ryan Jr., Solicitor-General, Sylvan A. Garfunkel, Herman W. Coolidge, contra.

TOWNSEND, J.

1. Where, as here, one accused of the offense of maintaining a device for the hazarding of money known as bolita is seen talking to two persons by certain officers of the law, and where the accused is then called over by the officers and his person searched, without a search warrant and before his arrest, and bolita books, tickets and change are found in his pockets, the evidence so obtained by the illegal and unauthorized search of his person is admissible against him, and does not violate the rights guaranteed by the Constitutions of the United States and the State of Georgia. Calhoun v. State, 144 Ga. 679 (1, b) (87 S. E. 893). An assignment of error based on the introduction of evidence so obtained, and the failure to charge that such evidence is inadmissible, is consequently without merit. This is the law in this State, irrespective of the personal views of the writer as to what the law should be. See Winston v. State, 79 Ga. App. 711 (54 S. E. 2d, 354).

2. Under the decisions reached by this court in the case of Figures v. State, and James v. State, ante, 832, the finding of bolita ticket books and change in the pockets of the accused is sufficient corroboration of his statement, "I am selling bolita," which one of the officers testified to his making at the time of the search. Therefore, an assignment of error that the court erred in failing to charge that corroboration of the fact that the defendant was engaged in the bolita business is necessary to convict, is without merit, the court having charged in this connection that the mere possession of bolita tickets in and of itself is insufficient to convict the accused of the offense of operating and maintaining a gambling game known as bolita.

The trial court did not err in overruling the motion for a new trial as amended.

Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.