Hayette v. State

Markell, J., delivered the opinion of the Court. These are appeals from conviction and sentence, under two indictments, for violations of the lottery laws on two days, March 31, 1951 and April 6, 1951 respectively. The two cases, one against appellant alone, the other against him and others, were tried together before Judge Sherbow without a jury. Sentence of fine and imprisonment was imposed under each indictment, cumuluative as to the fines, concurrent as to imprisonment.

In each case appellant was found guilty of (1) keeping a place for selling lottery tickets and (2) possession of numbers slips; in the first case he was also convicted of (3) selling a lottery ticket. If he was properly convicted on any count in each indictment, questions as to other counts are immaterial. The only questions raised here are (a) sufficiency of the evidence in each case and (b) admissibility of certain evidence in the second case. For about twelve years appellant, a white man, has operated a grocery store at the same place in a Negro neighborhood.

He has a “record” of past lottery convictions. He testified that he had gone out of that business about “the first of the year”. A pólice officer testified that on March 31st he (presumably in “plain clothers”) observed the store for about an hour, saw twenty-two colored men and six colored women enter the store, entered himself, bought a package of cigarettes ¹⁴³ from appellant, and saw a colored man walk over to appellant, pass appellant coins and tell him “to put fifty cents on 768”. Appellant contradicted this testimony both as to the number of persons who entered the store and the alleged “playing” of a number.

On April 6th Captain Emerson and four other officers (not including the one above mentioned) searched the premises under a search warrant. In the store they found some racing paraphernalia (as to which no evidence was obtained), and some blank pads, and arrested three negro men and one negro woman who entered the store, all of whom, when searched, were found to have numbers slips in their possession. These four negroes were indicted with appellant in the second case. The woman was found not guilty, the men guilty of possession of numbers slips.

After searching the store Captain Emerson and his squad searched the back yard, which is enclosed by a fence, with a locked gate, and the wall of an adjoining house. On an oil tank in the yard they found a cardboard box, which contained some trash and also a paper bag in which were twelve numbers slips showing seventy-seven numbers and $33.45 and some torn slips. Captain Emerson testified that he showed appellant the slips, appellant looked at them and said they were old, they could be a month old, Captain Emerson said they did not any of them look a month old to him and the paper was the same kind as the pads in the store. Appellant denied any knowledge of how the slips got there.

His only suggestion was that “when the boy does the cleaning up in the store * * * he might have swept them off the floor some place and thrown them out with the trash. That’s all I can say”; they might have been thrown on the floor; “* * * people are coming in and going out of my store all the time, all day long, and they are coming in there from time to time to get things they want to buy. They might have had them with them and thrown them on the floor. In that way it might ¹⁴⁴ have been left there.

I don’t know.” No “boy” who cleaned up trash was called as a witness. In the second case appellant’s basic contention is that the contents of the paper bag and the cardboard box were not properly admissible in