author: Beasley, Judge.

text:
    A91A0551.
    WILSON v. THE STATE.
    (406 SE2d 293)
   Beasley, Judge.

Wilson was convicted of two counts of rape, OCGA § 16-6-1 (a), two counts of statutory rape, OCGA § 16-6-3 (a), and one count of oral sodomy, OCGA § 16-6-2 (a), involving his fiancee’s two teenage daughters. His amended motion for new trial included a claim that he was denied effective assistance of trial counsel, which claim was rejected following a hearing at which appointed trial counsel testified. On appeal he challenges this ruling and enumerates also that the trial court erroneously commented on the credibility of a defense witness.

Although appellant claimed below that he was denied effective assistance of counsel as guaranteed under both the State and Federal constitutions, on appeal he relies on authority which does not address the State ground. It is deemed abandoned and we move to the federal ground.

1. “Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), establishes the benchmarks for determining whether trial counsel’s representation of a defendant in a criminal case was so deficient as to result in the denial of the defendant’s right to assistance of counsel under the Sixth Amendment. Strickland requires a convicted defendant complaining of ineffective assistance of counsel to make a two-part showing.

“Under Strickland’s first component, the defendant must show that counsel’s representation ‘fell below an objective standard of reasonableness.’ 466 U. S. at 688. In regard to this component, Strickland emphasizes that counsel’s ‘overarching duty’ is ‘to advocate the defendant’s cause ... to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.’ Id. at 688. In determining whether the defendant has established that counsel’s performance was constitutionally deficient, the court should keep in mind that ‘counsel’s function ... is to make the adversarial testing process work in the particular case.’ Id. at 690. ‘(C)ounsel has a duty to make reasonable investigations.’ Id. at 691. Moreover, the defendant must ‘overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ Id. at 689, citing Michel v. Louisiana, 350 U. S. 91, 101 (76 SC 158, 164, 100 LE 83) (1955).” Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990).

The record reveals the following: Defense counsel had no particular strategy for selecting a jury. Prior to jury selection, a defense witness overheard two prospective jurors, a man and a woman, discussing appellant’s case. The woman stated that cases like appellant’s were a waste of time because he was guilty and appellant might as well be sent on to prison. The man agreed and questioned how a man could do this to children. The defense witness related the exchange and pointed out the man and woman to defense counsel. The woman was selected to serve on the jury.

During the course of the trial it was apparent that defense counsel was confused about applicable rules of evidence, such as the “rape shield” statute (OCGA § 24-2-3), and appropriate objections to challenge admissibility of the State’s evidence.

Appellant’s defense was complete denial of commission of the acts. The State’s main evidence was the testimony of the alleged victims who related in detail sexual activity with appellant. Therefore, the credibility of the victims versus that of appellant was critical. Yet defense counsel failed to cross-examine either girl about the sexual activity. Nor did counsel question them about prior inconsistent statements, i.e., statements to the effect that they had invented the charges against appellant in order to remove him from their home.

One State’s witness testified that while drunk at a party, appellant had admitted having sexual relations with the older girl. The witness had previously related that appellant on the occasion in question had merely expressed the opinion that if he wished, he could have sex with the girl. This previous varying statement was in the State’s file which had been made available to defense counsel, but defense counsel did not explore the discrepancy. Defense counsel did not anticipate that the witness would testify to appellant’s alleged admission.

Several defense witnesses were not questioned effectively by defense counsel. The witnesses later related that if appropriate questions had been asked, they would have testified about the victims’ statements of falsifying the charges, about the victims’ bad reputations in the community, and that the witnesses would not have believed the victims under oath.

Appellant’s son stated at the motion hearing that prior to trial the older girl told him she was sorry for getting appellant in trouble but that she had had to get appellant out of the house because he was too strict, that she hated appellant but that appellant had not had sex with her. The son related such information to defense counsel, but even though the son attended appellant’s trial and was available to testify, he was not called as a witness.

Due apparently to religious beliefs, appellant and the victims’ mother, who testified on behalf of appellant, refused to swear their oaths but rather chose to affirm them. Defense counsel did not request or provide any explanation to the jury about the refusals to swear in order to avoid any misimpression that the testimony would thus be inferior or somehow less credible.

Without considering the remainder of appellant’s points, these deficiencies reflect “that counsel did not ‘adequately investigate the case,’ that he did not ‘make the adversarial testing process work,’ and that his omissions in this regard cannot be considered ‘sound trial strategy.’ ” Jowers, supra at 462 (2).

The inquiry does not end there. “The second component of the Strickland test requires the defendant to show prejudice. ‘Concerning the prejudice component, the Court [in Strickland] held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different (104 SC 2068).’ Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).” Id.

The evidence was legally sufficient, including corroborating evidence, see McClendon v. State, 187 Ga. App. 666, 668 (371 SE2d 139) (1988), to enable a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). But the evidence was not overwhelming. The State’s case rested largely on the credibility of the victims. Appellant has demonstrated that it was seriously suspect and that there is a reasonable probability that but for counsel’s substandard advocacy, the result of his trial would have been different. Appellant is entitled to a new trial. See OCGA § 16-1-8 (d) (2).

Decided June 6, 1991.

Wade M. Crumbley, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

2. The ruling in Division 1 makes it unnecessary to address the remaining contention of error.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    395.
    ANDERSON v. THE STATE.
    1. Before a reviewing court is authorized to pass upon the constitutionality of an act of the General Assembly, it must appear that the question was made or presented in the court below and was passed upon by the trial judge; also the alleged repugnancy of the statute to some portion of the constitution must be specifically asserted.

      (a) An allegation of the repugnancy of a statute to the constitution is not sufficiently specific, unless the clause or paragraph of the constitution claimed to be violated is set out.
    •(6) No constitutional question is properly presented in this ease. • •
    2. An indictment is sufficient which states the offense in the terms or language of the statute, or so plainly' that the nature of the offense charged may be easily understood by the jury'.
    3. By the Penal Code, § 1039, a definite punishment is prescribed for “every crime declared to be a misdemeanor.” The effect of this section is not merely confined to the misdemeanors enumerated in the code, but has a prospective force.
    4. A place where futures are bought and sold on margins is a gaming-house.

      (а) This is true although “the contracts are telegraphed out of the State,” if the actual wagering or the settlement of the wagers take place in this State.
    (б) The Boykin act (Acts 1906, p. 95) has withdrawn from the business of dealing in futures on margins whatever legislative sanction there was to he implied from the fact that by the tax act of the State a license tax had been imposed upon “bucket shops.”
    (e) An assertion, although made in each transaction, by the customers of an office where futures are bought and sold, that actual delivery is contemplated and understood in all cases, will not prevent the keeper of the office from being guilty of maintaining a gaming-house, if as a matter of fact the customers, throughout a continued course, of dealings, do not make, tender, or accept actual delivery, but, through the proprietor of the office, settle their winnings and losses in money. The actual facts of the case must override the contradictory alleged contemplation of the parties.

      C. Wliere an indictment contains two counts, and the defendant lias teen found guilty on both counts, and only one sentence has been imposed, and the evidence authorizes the conviction, errors assigned relating to one count only are immaterial. In this ease the evidence authorized the verdict on both counts. The trial having been entirely free from error as to the count in the indictment charging the maintenance of a gaming-house, this court will not pass upon alleged errors in the instructions of the court to the jury in relation to the count charging a violation of the Boykin act, commonly known as the “anti-bucket shop law.”
    Indictment for keeping gaming-house, from Fulton superior court — Judge Eoan. March 2, 1907.
    Argued May 2,
    Decided May 16, 1907.

      Anderson, Felder, Rountree & Wilson, Rosser & Brandon, for plaintiff in error.

      G. D. Hill, solicitor-general, T. W. Rucker, R. R. Arnold, contra.
   Powell, J.

This is what is known as the “bucket-shop case,” being the first to come to this court from a prosecution under the- Boykin act (Ga. Laws, 1906, p. 95). The title of that act is as follows: “An act to'prohibit contracts and agreements for the sale and future delivery of cotton, grain, provisions, and other commodities, stocks, bonds, and other securities, upon margin, commonly known as dealing in futures; to declare such transactions unlawful, and to' constitute a misdemeanor on the part of any person, association of persons, or corporation participating therein, whether directly-or indirectly; to prohibit the establishment, maintenance, or operation of any office or other place where such contracts are made or offered; to define what shall constitute prima fa’c-ie evidence of guilt; to compel all persons participating in such transactions to testify concerning their connection therewith; to provide that no discovery made by any witness which would tend to subject him to conviction or punishment under this act shall be used against such witness in any penal or criminal proceeding, and that he shall be altogether pardoned therefor; to provide that regular commercial exchanges and other bona fide trade organizations may post quotations of market prices, and for other purposes.” Section 1 (page 96) provides that “from and after January 1, 1907, it shall be unlawful for any person, association of persons, of corporation, either as principal or agent, to establish, maintain, or operate an office or other place of business in this State for the purpose of carrying on or engaging in the business, forbidden by this act, commonly called 'dealing in futures on margins/ and any person violating the provisions of this section shall be guilty of a misdemeanor.” In section 2 it is provided that ''every contract or agreement, whether or not in writing, whereby any person or ■corporation shall agree to buy or sell and deliver, or sell with an agreement to deliver, any wheat, cotton, corn, or other commodity, ■stock, bond, or other security to any other person or corporation when in fact it is not in good faith intended by the parties that an actual delivery of the articles or thing shall be made, is hereby declared to be unlawful, whether made or to be performed wholly within this State or partly .within and partly without this State; it being the intent of this act to prohibit any and all contracts ■or agreements for the purchase or sale and delivery of any commodity or other thing of value on margin, commonly called dealing in futures, when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time of settlement: provided, that nothing herein contained shall be construed to apply to transactions by mail or wire between persons in this State and persons outside this State, where the person outside this State is not represented in this State by any broker, agent or attorney in said transaction.” ■Section 3 makes any person who shall become a party to any of such contracts, personally or as agent, directly or indirectly, or who shall do anything to aid or further such an agreement, guilty of a misdemeanor. Section 4 makes participants competent witnesses and provides immunity from punishment for such as are called to testify. Section 5 (page 97) makes proof of certain 'things prima facie evidence of guilt of a violation of sections 2" .and 3. Section G is as follows: “Proof that anything of value .agreed to be sold and delivered was not actually delivered, and that •one of the parties to such agreement deposited or secured, or agreed to deposit or secure, what are commonly known as 'margins/ shall ■constitute prima facie evidence of a contract declared unlawful by the terms of this act.” Section 7 provides that “proof that any person, association of persons, or corporation, either as principal or agent, has established an office or place where are posted or published from information received the fluctuating prices of cotton, grain, provisions, stocks, bonds, or other commodity or thing of value, or either of them, shall constitute prima facie evidence of guilt of the offense or offenses prohibited in section 1 of this act.”' And section 8: “This act shall not be so construed as to prevent or render unlawful the posting or publishing of market quotations or ■prices of commodities, stocks, bonds, and securities by any regularly ;orgánized commercial exchange or other bona fide trade organization .in which no purchase or sale for future delivery on margin is permitted; that no person or corporation committing any of the acts or things prohibited in defense thereof to plead the payment of any license or other tax to the State, or to any county or municipality thereof, nor shall tire payment of any license or other tax in anywise operate to relieve such offender from the penalties imposed, by this act.” Conflicting laws are repealed.

The indictment contained two counts, one under this act and the other one under the statute prohibiting gaming-houses. The. substance of the first count is that the defendant,. with others, “in the county aforesaid, on the 25th day of January, in the year of our Lord, 1907, with force and arms, did establish, maintain, and operate an office and place of business for the purpose of carrying-on and engaging in the business commonly called dealing in futures on margins, and did then and there, in said office and place-of business established for the purpose aforesaid, maintain and operate and engage in a business commonly called ‘dealing in futures-on margin.’” The second count charges that the same persons-did, “in the county aforesaid, on the day aforesaid, keep and maintain a gaming-house.” The defendant demurred to the first count-of the indictment, on the following grounds: “(1) Because the-first count of said indictment does not state facts sufficient to- ' charge the defendants, or either of them, with a crime under the laws of the State of Georgia. (2) Because it is not averred in said count that the business which the defendants are alleged to-have established, maintained, and operated is ‘forbidden’ by the* act of the legislature (Acts 1906, p. 95), nor that the business is-one in which contracts are made for the future delivery of com- . modifies, and that actual delivery of such commodities is not contemplated. (3) Because the allegations of said count are consistent with innocence under the law, and said count does not-point out the details, nor in what ways or particulars the penal laws were violated. (4) Because the act of the legislature aforesaid, upon which said count is based, prescribes no penalty or punishment for a violation of said act.” The demurrer was overruled, and exceptions were duly taken.

The material parts of the evidence are as follows:

The first witness for the State had been a clerk .in the defendant’s office, both prior and subsequent to January 1, 1907. He testified that in the defendant’s office stocks, cotton, and other commodities were bought and sold on margins for future delivery. He. was with the defendant for over a year, and no actual deliveries', were ever made during that period. On January 1, 1907 (the date-the Boykin act went into effect), the defendant made a slight-change in the name of his firm; and the room in which'they had formerly posted market quotations was turned over to the Atlanta Commercial Exchange. A door which had opened between the defendant’s office and this quotation room was closed up, and also the opening through a window. In the larger room, after January 1st, was the Atlanta Commercial Exchange; and in there a blackboard was kept, an operator was on duty, and the fluctuations of the market were posted. None but members of the Atlanta Commercial Exchange were admitted to this room. There were some ■60 to 80 members. “To become a member you just make an application to the secretary and pay $1 a month dues. If a man wants to buy anything, any cotton or stocks or bonds, or wants to ■sell, he can get the quotations in the larger room, from the blackboard where they are posted; but he can’t make a trade in there. For instance, if he wants to buy 100 bales of March cotton, or sell 100 bales of March cotton, he sees that in the larger room on the blackboard, and then if he wants to make a trade he goes to the next room to Mr. C. N. Anderson’s [the defendant’s] office, coming out of the corridor of the Prudential Building, stepping about 10 feet into another door. Yes, sir ; ho would come out into the corridor, and go around about 10 feet into another door, to get in where Mr. Anderson is. In there with Mr. Anderson is Mr. Huffaker, an operator, and a boy and myself when I was employed with them. When he goes into Mr. Anderson’s office, if He wants to make a trade, he has, first to sign a power of attorney, on a blank furnished. Yes; I have seen a great many men make trades there. I have known only one man to make a trade in that place since the first of January- — -Mr. M. E. Ewing. First of all a man has to come in and sign up a blank power of attorney. Yes, T have seen money pass there between Mr. Ewing and Mr. Anderson since the 1st of January of this year. The money was handed either to> myself or to Mr. Anderson, by Mr. Ewing, to buy stock. I think it was he was buying. I have seen Mr. Ewing do that a great many times since the 1st of January. If he wanted to buy, for instance,, $100 worth of stock, he would pay the money to C. N. Anderson & Co. — to Mr. C. N. Anderson. It would be placed to Mr. Ewing’s credit. If the stock went down, or whatever he bought went down, he would have to put up additional margin, if he wished to cany the stock. Yes; I have known him to do that. For instance,, if he bought any particular stock, expecting it to go up, and it went down, I have known him to come in and put up margins to stay i'n.. Yes, sir; I have seen that done more than'once in this county, since the 1st of Januarjq by Mr. Ewing. If Mr. Ewing won, then Mr. Anderson paid him the money in his office, which was adjoining the blackboard room. Yes, sir; they settled by the figures of quotation on the blackboard. The money was paid to Mr. Ewing, if he won, by Mr. Anderson, at that place; if he lost, the money he had already paid was kept by Mr. Anderson and 'forwarded to-whoever the broker was he placed the trade with. His correspondent outside of the State and county was Campbell & Co. That was the only correspondent he had. I don’t know who Campbell- & Co. was, except they are in Cincinnati. No, sir; I could not swear there was a Campbell & Co. Yes; if he lost, he paid his loss -to Mr. Anderson in that room. If he wanted to let his trade go,. Mr. Anderson kept the monej''; and if he wanted to stay in the market, he would have to put up additional margins with Mr. Anderson. If the price of a particular stock he had bought went down,, and he didn’t put up a margin, the money he had already put up was exhausted, and was sent to Cincinnati by Mr. Anderson. If there was a rise in the price of an article he had bought, and he wanted to close out, then he got his money from Mr. Anderson in that building. He would get the difference between what he-bought it at and what he sold at, less the commission. . . . From the room containing the blackboard I would say you would have to go about 15 or 16 feet to get where Mr. Anderson sat.”

On cross-examination this witness testified: “The business that C. N. Anderson undertook to do was just acting as agent for people, to transmit orders for execution in some other State. As to-my connection with C. N. Anderson & Co., and. the duties I performed in connection with that firm, I was clerk, yon might say. If any came in, and couldn’t write quick enough, and wanted a quick execution, I would assist them in writing it, and they signed all the blanks. I never actually transmitted any of the orders that went through C. N. Anderson & Co. to Cincinnati, except handing them to the operator. In the case of Ewing he came and signed the telegram himself, on a Western Union telegraph blank, and I handed that to the operator, and the operator transmitted it over the wire. Yes; that is true. C. N. Anderson & Co. had no interest in that transaction, except to receive a commission or brokerage from Ewing; that is all. Yes; Ewing paid me and Anderson & Co. the margins to put up for him, and C. N. Anderson & Co. put that up with Campbell & Co. C. N. Anderson, acting as broker for Ewing, when this telegram had been sent in and executed and the trade confirmed, took the margin and sent it on to Campbell & Co. Campbell & Co. were the brokers in Cincinnati. C. N. Anderson & Co. paid Campbell & Co. part óf the brokerage they received from Ewing on any other trade that came in. Yes; it is true that, when a telegram was handed to the operator to be forwarded to Campbell & Co., no order was executed, or no statement of execution was handed out to the trader, until Campbell & Co. were heard from. The purpose was, when Ewing filed the telegram with the operator, that wire was sent on to Campbell & Co., and when Campbell & Co. telegraphed back, then C. N. Anderson & Co. took the margin from Ewing and sent it on, and the trade was executed. I can not recall specifically the several trades that Ewing made, or, the exact date. I simply know that Mr. Ewing came in and made trades. I am really testifying about the course of business more than anything else. I can’t recall any specific trade where he made a profit or loss. I am satisfied Mr. Ewing made some profit, but I do not recall any specific instance. No; I can not recall any other person. I was with L. J. Anderson' & Co. from the 31st of Januarj', 1906, and with C. N. Anderson from the 1st of January this year, until about the 13th of January or the 15th of January. ... I don’t know whether it was for actual delivery or not. No; I do not know that there was ever any understanding had with Ewing or any other trader that the goods were not to be actually delivered when called for. T don’t know anything about that. The members of the association were not required, if they wanted to make trades, to make them through C. N. Anderson & Co. at all. I know of some members of the exchange that did not make any trade at all. Mr. Lincoln is one, a grain man here doing business in Atlanta. I can not recall any others just now, but I presume I do know others. It is fame that there are a number of the meihbers of the exchange who did not have anything to do with C. N. Anderson & Co., and did not operate in there at' the time I was there. The two places of business were entirely distinct. C. N. Anderson & Co. had no control over the operations of the exchange. They were brokers pure and simple, for commission, operating only for a commission on employment. I do not know positively that persons who wanted to trade through C. N. Anderson & Co. took their quotations from the board of the Atlanta Commercial Exchange, but T know a great many of them did. Yes; as a matter of fact T simply know that some members of the exchange traded (hrough C. N. Anderson & Co. Yes; C. N. Anderson & Co. had their own operator. It is true, as a matter of fact, that when a trade was closed with which C. N. Anderson & Co. were connected it was closed with the quotation of prices as given by Campbell & Co., in Cincinnati, or by themselves if they made a limited order. If they made a limited order, it went out'at that limit, or the trade closed at that time. Whether there was a profit or not, it was settled according to the limit. Q. But where that was not inte, where the opérator’s margin was exhausted and his trade was closed, or where he ordered it closed at a certain figure, that was all done by quotation from Campbell & Co. straight, wasn’t it? You didn’t have to go lo the hoard for that, did you? A. I will have to commit myself to answer that question. I will have to commit Anderson to answer that question.- Q. You say you can’t answer that, then? When you stated on direct examination that Anderson alwajrs dosed the trade and settled by the quotations on (hat hoard, you didn’t mean that, did you? A. Well, yon ask mo a direct question now. They were both on the same wire. They got their quotations over the same wire, and that is the reason why 1 stated what I did on the direct examination. It is a mere deduction of mine. No; it is not true, as a matter of fact, since I -think about it, that Anderson & Co. had to go to that blackboard to get the quotations at all. Yes; it frequently happened that a trader who wanted to purchase cotton for future delivery would ■simply have his order telegraphed' in to purchase at the prevailing quotations, and that was all done in Cincinnati. A telegram was ■simply sent in to Campbell & Co. to execute an order the best they could upon the- market at the time they got it, according to the market when they got it, when it was sent without a limit to it. Yes; it frequently happened, when a prospective purchaser wanted to buy at a certain figure and the market in the meantime ran up, that Campbell & Co. could not buy at all, and when they ordered the trade closed out upon the market, whatever the market might be, that was done by Campbell & Co. in Cincinnati, and the market telegraphed in, when the trade was wound ftp or closed. No; 'that was not done by any inspection of these blackboards at all.”

On redirect examination this witness testified: “As to the purpose of having that blackboard in the room where the quotations •and fluctuations of the market were posted, it was to furnish quotations to the members. No; a man could not know anything .about the market until he went in to that board, unless he could' make a guess at it. A member would get his information upon which he made his trade from this blackboard. The information on the blackboard came from Campbell & Co. That information from Campbell & Co. came on the same wire as C. N. Anderson & Co. They were the same line — the same Avirejbut Anderson's operator did not take those that were put on the board, you knoAv. Yes; it came over that wire. The same quotations that went on that board came over Anderson's wire. There Avere Iavo operators, one in Anderson’s room and one where the blackboard Avas, and both of them took the same information of the rise or the fall, or fluctuations, of stock, bonds, cotton, etc., from Campbell & Co. of Cincinnati. Mr. Anderson got those commissions. As to the expense of those quotations, telegraphed service, the cost of a wire a day, it didn’t cost anything to get those messages, so far as T know. I don't knoAv who paid for them. It cost nothing to my knoAvledge. I don't know about that. I knoAv prior to the 1st of January it didn't cost, but after the 1st of January I couldn't swear positively whether it cost anything or not. As to Iioav many employees Avere in those rooms, the tAvo places, there were tAAro Avhere the blackboard Avas — the opei’ator, and the secretary and treasurer, who was the doorkeeper. The operator marked the quotations. In. the other room were only three, after I left; four when I was there. The operator was paid $30 a week, and I was paid $20 a week, and the office boy was paid $3.50 a week. I said that, the last I know of it there were about 75 or 80 members of the exchange that paid a dollar a month.”

The Mr. Ewing referred to above was also called as a witness. He testified: “I have bought up there several times since the 1st of January, 1907, but I could not tell you how many times. We have got a board of trade up there, you know, something over 1001 members, and we put the quotations on the board as they come in,, and we see the quotations, and then send our orders anywhere we-please. When I would go in and get the quotations from the board,, I would go around in the other room, where Mr. Anderson stayed,, to make my trade, when I wanted to go and trade there. I believe Mr. Danne was staying there, and I gave the. money to him. Yes; I have paid money to Mr. C. N. Anderson- — -I have no idea, how many times, but 30 or 40 times, I suppose — since the 1st-of January, 1907. When I would go and get the' quotations 'from the blackboard and wanted to buy a commodity, I would usually go in and give it to Mr. C. N. Anderson. If the market went 'up^. I got my money from Anderson; if it went against me, I don’t, know where it went. If it went against me, and I wanted to stay in-the market, I would put up more money. When I would put up-more money in order to stay in the market, I would give it to-Mr. Anderson usually. ... I am a member of the Atlanta. Commercial Exchange. The only good that membership did me-was the information it gave me by seeing quotations on the blackboard. That is the reason I went into it. I wanted to see the-market. We were not required to trade with C. N. Anderson- &. Co., not confined to him at all. We could have went anywhere and traded we wanted to. It is true it was explained to us that if we wanted to trade with C. N. Anderson, that they could not act in any other capacity than our agents, and that they would act in that way, if we paid a commission. We always .signed a contract to that effect to Anderson, that he was to act as our agent. Yes; we went in there with the understanding that C. N. Anderson- & Co. would not act with reference to dealings in any other way, except upon employment to he paid a commission for their services. That was the understanding, and I always signed a contract to thát • effect — -appointed him as my agent. When I put up a margin there I telegraphed through the operator, over the Western Union wire, to the Cincinnati brokers, and they had to telegraph back confirming the trade. Always when I put in an order for a trade .- I put the money in that way, with the order, and that money was ■ to be forwarded by Mr. Anderson on my behalf, as my agent, when I made the trade through him. I had to put the money in for his protection. He was employed as my agent, to pay it to the people outside the State. I frequently put in orders for a trade and never ■ got it; but I always got my money — no trouble about getting my money back. Yes; I regarded him, through all those transactions,., as my representative, my agent, to place offers for me outside the-.State, for which I paid a compensation. That was the understanding when I began; and when I closed the trade, if there was-money coming back to me, I instructed him, as my representative,. to get it back and pay it to me. That is all there was of it, and I never had any trouble. He acted mighty nice with me. I took his receipt for the money, and if I didn’t get the trade I would go and give him the receipt, and he would give me the money back. I have done that often. Very frequently I would not get a trade at all. Yes; I signed all of these orders that were made and seht over the wire, and they were directed to Campbell & Co., of Cincinnati, and that is the way they were directed. I never got any actual cotton, or stocks, or bonds. I never asked for it. They never offered it to me, and I never did want it. As to whether or not I would buy 100 bales of cotton straight out, I wouldn’t have that much money. I could not have paid for 100 bales of cotton. If I bought 100 bales of cotton I would pay $100. I suppose cotton was worth about $45 or $50 a bale. No, sir; I never had any understanding with Campbell & Co. that they would make actual delivery if I required it, because I never expected any actual deliver No; I had no understanding with them that they would be relieved from delivering cotton if I required it. I never had any contract of that kind at all. I have always understood they would deliver the cotton if I did require it. No; I never saw one of them in my life (referring to Campbell & Co.). The only contract I had was when I wired an order and they confirmed it. That is all; nothing at all said about actual delivery. Nothing-was ever said at all about any stipulation between me and them that if they wanted to deliver the stock I would not be required to take it. I don’t reckon they knew a thing about my financial responsibility. I never saw Campbell & Co. I was expecting Mr. Anderson to look after that. I have heard a good deal about Campbell & Co., and I supposed I was dealing with them through Anderson. I never settled, except on the rise or fall of the market. That is the way I settled.”

The district superintendent of the Western Union Telegraph Company testified that the telegraph wire above referred to connects the defendant’s office with Odell’s office in Cincinnati. It is a leased wire, and the rental rate is $25 per mile per annum. It is about 500 miles from Atlanta to Cincinnati..

The manager of the Prudential Building, in which these offices ■are located, testified that the lease of these rooms stands in the name of Walter Campbell, but by Campbell’s instructions the rents are paid by draft on the Odell Stock & Grain Company. This includes both rooms, Anderson’s office and the blackboard room. The two rooms rent for $1,000 per year.

Another witness testified: “I am in and out there [referring to defendant’s office] two or three times a day. I have bought a little cotton up there by telegraph every day. I would sign a telegram, I think, to Cincinnati. I am not positive where it went, but I gave it to. a young man there in the office, and he bought me some cotton in Cincinnati, he said. I got the quotation of the cotton, the basis for my trade, in another office, down this way next to the Neal Bank. I think just two doors between, or may be just one door. There is one door in Mr. Anderson’s office, and then I come down this way and go in to the blackboard and look up there, and that is where I get my quotations. When I bought cotton I went in the room where' Mr. Anderson was. I don’t think I bought but 50 bales of cotton, and paid $1 a bale for what I bought. Cotton is worth now, I suppose, about $50 for the actual stuff. 1 put up $50, and bought 50 bales. That is the way I bought it, or $25 for 25 bales. I think 1. bought 50 bales up there. I think I made a little on my transaction. Mr. Anderson gave me a check, I think. Yes; in that building there. I work for the Bell Telephone Company. No; I never asked for' the delivery of that cotton. They never offered to deliver the cotton to me. It would settle on rise and fall of the market, of course — on the fluctuation.” On cross-examination the same witness testified: “I was in there two or three times a day. Mr. Hamilton occupies the exchange and seems to be in charge there — a gentleman who sits at the door, old man Hamilton, I think. He seems to be manager of the place in there. He tells me he is. Yes; unfortunately, I am a member of this exchange. I pay a dollar a month for the privilege of going in and looking at the board.. No; I do not pay anything for the privilege of trading anywhere.. I go in and look on the board and get these quotations, and then go and trade where I please. Of course, I could trade in NeAV York or anywhere else I wanted to. I am under no obligations to1 trade with Anderson any more than with Curran, or any other’ broker or commission merchant in the city of Atlanta; none whatever. Mr. Whittlesey is the man who puts the quotations on the-board. No; I do not believe I have ever seen either one of those= gentlemen in Anderson’s office. As to these gentlemen, Mr. Hamilton and Mr. Whittlesey, going to their work every morning just like-the clerks in Neal’s Bank, they are there; but I don’t stay there. As to whether they go home at night when they close business I do not know. I could not tell you where they go. I do not remember ever to have seen them go to Anderson’s office. When I go to Anderson’s office to make a trade, I just write out a telegram. Yes; I sign my name to it', and I think it goes to Cincinnati, but-I am not positive. The order goes to buy or sell a certain number of bales of cotton, according to the rules of the exchange. I saw Mr. Anderson in his office, and I think probably he has a-stenographer and operator that I saw in there. No, sir; I never saw these people in the exchange office doing anything. I do not. stay there. I have never seen Mr. Anderson and his force doing anything in the exchange at all. I don’t remember now to have ever seen Mr. Anderson in there. Yes; that is the way I have, understood it, that those two businesses were separately conducted so far as I can see. No more connection between Anderson and this exchange than between the Neal Bank and the exchange, SO” far as I can see or know. Those quotations are put on a board in. the exchange room. I never saw any board in Anderson’s office. There are no. quotations published in Aüderson’s office, any more? than in the Neal Bank. I never gave Mr. Whittlesey, the operator in the Commercial Exchange, an order for cotton, stocks, oats, grain, barley, or anything else. As to whether or not I would have seen if anybody else had given him an order while I was there, I don’t pay much attention to that. I just pass in and out, you know. No; I never saw anybody give Mr. Hamilton, the secretary, an order, and I never saw anybody pay him any money for stocks or bonds'or futures. In that room where the Commercial Exchange is conducted, the only business done is 'transacted by Mr. Hamilton, the secretary (who sits at the door and admits members and puts out non-members), and the receiving of quotations by Mr. Whittlesey, the operator, and putting them on the blackboard — is all I have seen done there. If anything else was done in there I would have seen it, I suppose. As you go into that room from the hallway the operator sits to your right, as you enter, and Mr. Hamilton sits to the left, close to the door, with a table to his left, and the members of the exchange sit and watch the board, or come in'and go out: This is all I have ever seen done in that room — the operator posting the quotations on the board, and Mr. Hamilton, the secretary, admitting the members and keeping out non-members. I don’t think I ever traded for anything but a little cotton. I think I gave my orders to Mr. Anderson or the operator. I am not positive which. I don’t remember ex- ■ actly, but I think my telegrams were addressed to Cincinnati, • Ohio, to buy a certain number of bales of cotton at a certain price. I fixed the price. Supposing I order 50 bales of cotton, say of May deliveries, say at 9 cents, the price of the order I gave would be fixed at the place of execution in Cincinnati. If I should send a dispatch to buy me 50 bales of cotton at the market quotation, the price would be the quotations at Cincinnati, I would think. I went by the prices on the board in the Commercial Exchange room, but it was confirmed in Cincinnati. I suppose; when I would go in and see the price of cotton, if May delivery was 9.50, and I would send a telegram to Cincinnati, to buy me a certain number of bales, I suppose they would buy it at the market whore the concern was that was representing it. I suppose they would buy it at the market they had there, in the State of Ohio. Yes; before my order was executed I would get a return wire from Cin- ■ cinnati, confirming my trade, telling me they had executed my ■ order in Cincinnati, at 9.50, or 9.45, or whatever the price might have been. I suppose that is the way it is done. Yes; in this ' transaction Mr. Curtis Anderson, the broker, was simply my agent executing my order. That is what he said. Of course, he was my agent. I was trading through him. I paid him a commission to represent me. It cost me so much to make the trade. No; T never did go into Mr. Anderson’s place of business and telegraph •an order to any other place in Georgia for execution; but I always telegraphed my order outside of the State. That is my understanding. The $50 I would put up for 50 bales of cotton, I suppose, was just the margin in the trade, you know. I don’t remember that I saw the contract under which I purchased that cotton. They handed me a telegram, I think. They always gave you a contract. No; I have not a copy of one of those contracts. No; I don’t know what the intention of Campbell & Co., or anybody ■else that I bought this cotton from, was. There was no agreement between me and my agent, C. N. Anderson & Co., or between the firm in Cincinnati, that there was not to be a delivery of this cotton; no contract between us at all; no actual agreement about it; nothing that I know of. I bought this amount of cotton, and paid this amount of money, the amount named in the contract, for future delivery, and that was the whole contract; all I know •about it. Just buy so many bales of cotton, and pay so much money. I have been told that there were about 100 members .of this exchange. That is all I know. I see the members of this 'exchange in there, when I would go in from time to time. The members of the exchange go in there and look at the quotations, .and then go out and send their orders anywhere they please. Yes, sir; there are a great many members of this exchange who are' dealing in grain and other commodities, flour men and so on, who go in there; but I couldn’t say whether they made trades or not. I would see them in there with other members.”

For the defense several gentlemen testified that they were members of the Atlanta Commercial Exchange, and that they themselves had no relation with the defendant. They did not buy or sell futures; but, being in the actual business of dealing in grain, ■etc., desired tlie market quotations for business purposes.

The defendant’s statement is as follows: “I am a member of the firm of C. N. Anderson & Co., who are general brokers in the ■city of Atlanta. We consulted attorneys before we ever began our business, and believed that we were within the law of Georgia,, and we had no intention of violating the laws and would not do-so if we knew it. We are purely brokers; got no interest in these-transactions j^ou have heard about whatsoever, except to receive our' commission. We require every customer who places one of these orders to sign a power of attorney, authorizing us to act as their agent, before we place any orders whatsoever. Campbell & Co. are brokers in Cincinnati, and trade on the different exchanges throughout the country, not for themselves, but for their clients. We have no connection whatever with Campbell & Co. off Cincinnati, not the slightest. The only connection whatsoever we have with them is to got our commission from our customers. We-pay them a part of that commission to handle these orders for our customers. We pay our rent to Walter Campbell. As to the commercial agency, I don’t know anything about their rent. Their business is entirely separate from mine, and we have no connection with them whatsoever.” *

Samples of the contracts signed by the defendant’s customers-were introduced. They were in the following terms: “I do-hereby constitute and appoint C. N. Anderson & Co. my lawful agents and brokers, with authority to place for me such orders as-' I may give them, with such persons and in such markets as they may select, located outside of the State of Georgia, for the purchase or sale of bonds, stocks, cotton, grain, and other produce, either for present or future delivery, and I agree to pay them the-usual and customary commission allowed -by brokers for like services, for all such services rendered to me by them; and, in cases-of orders for future delivery, I agree to furnish them with the-usual and customary margins required, to be placed for my account with those to whom said orders are given, provided that the said agents and brokers shall not be bound to place any orders given to them by me, unless they so desire.”

The defendant also introduced samples of the statements sent, by Campbell & Co. to Anderson & Co., showing daily transactions. These statements contained, at the head thereof, the following language: “Below we submit a statement of business transacted for your account as ordered. On all marginal business the right is reserved to close transactions Avhen margins are running out,, without giving further notice; we being governed in this by the-market quotations as received at our office. We solicit and receive no business, except with the understanding that the actual delivery of the property bought or sold upon orders in all eases is contemplated and understood. All unfilled orders expire with the day, unless ordered open.”

Defendant also put in evidence the articles of association of the Atlanta Commercial Exchange, in substance as follows: “The undersigned do, by subscribing this agreement, hereby associate ourselves together in good faith, as a trade organization or association, for the purposes hereinafter stated, agreeing among ourselves to do and perform the matters and things hereinafter set out; and we consent and agree that any person or persons who may hereafter duty sign this agreement, or any correct copy thereof, shall become a member of the organization, or association. The purpose of this association or organization is to establish a place and conduct an office, or offices, for the posting and publishing of market quotations or prices of commodities, stocks, bonds, and securities, upon blackboards or otherwise, for the mutual benefit and advantage of'the members of the association. It is agreed and distinctly understood that the organization or association shall neither directly nor indirectly purchase or- sell, for future delivery on margin, any of the articles or things the market prices of which are quoted and published thereby; nor shall it, directly or indirectly, permit any person, or persons, or corporation, to use its offices, or in connection with the association, in the purchase or sale, for future delivery on margin, of any such articles of things. The publication in its offices of market quotations, or prices, as aforesaid, is to be strictly for the advantage and benefit of the members of the association or organization, and each of them, iii the conduct of their private affairs, and in conformity with the act of the General Assembly of Georgia, relative to dealing in ‘futures/ approved August 20, 1906. It is agreed and understood that, so soon as practicable, the association or the members thereof shall be duly incorporated under the laws of Georgia, under the name and style of ‘Atlanta Commercial Exchange/ or such other name or style as may hereafter be agreed upon. It is further agreed and understood that a president, or other executive of the association, shall he forthwith elected, as also a secretary and treasurer, who shall hold their position, with such duties attached thereto as are usual in connection with, such offices, until the association shall he duly incorporated, organized, and regular officers elected. Such president • or executive head to receive a monthly salary of —:— dollars, and such secretary and treasurer to receive a monthly salary of-dollars. It is agreed that the president or executive head may employ an operator, rent offices, and equip the same, and undertake any other expense, within reason, as he may deem necessary to the proper operation of the offices and the conduct of the business of the association, until the due incorporation thereof. Our attorneys, Messrs. Anderson & Anderson, of Atlanta, Georgia, are herewith authorized forthwith to proceed to incorporate said association, in accordance with the spirit of this agreement, and to prepare by-laws for its operation, and submit the same to the incorporators upon the organization of the company. This the 28th day of December, 1906.” Signed by C. N. Anderson and about 75 others.

Since it is the duty of this court to certify to the Supreme Court, for instructions, any question as to the constitutionality of the statute under which the defendant was indicted, if such a question is properly made and is necessary to the determination ■of the case by this court, wo have first investigated the record1 with the view of ascertaining whether any such questions are so made. We find the following assignments of error in which ap* parent attempts to attack the constitutionality of the Boykin act, ■or portions thereof, are made. In the bill of exceptions, in assigning error upon the exceptions pendente lite, the following ground is set forth: “That the court erred (and the verdict of the jury was void) for that said act of the legislature of Georgia, known as the ‘Boykin Act/ is absolutely void, in that it contravenes the constitution of the State of Georgia, because it is a special act prescribing a rule of law where there are general provisions of law covering the case, and because said act violates the constitution of the United States, in that it denies to persons falling under the operation of the law the equal protection of the laws; and because said act, as a whole, opposes and nullifies the fundamental rule of law in American criminal jurisprudence, that a person charged with crime is presumed to be innocent until proven guilty by the prosecuting power beyond a reasonable doubt.” This fails to raise a constitutional question, for two reasons: Reviewing courts will not pass upon, the constitutionality of an act of the General Assembly, unless it appears that the question was made or presented in tlie court below and was passed upon by the trial judge; nor unless it clearly appears from the record what clause or paragraph of the constitution it is claimed that the statute violates. S., F. & W. Ry. Co. v. Hardin, 110 Ga. 433, 437, 35 S. E. 681; Jones v. Oemler, 110 Ga. 209, 35 S. E. 375; Brown v. State, 114 Ga. 60, 39 S. E. 873; Newkirk v. So. Ry. Co., 120 Ga. 1048, 48 S. E. 426; State v. Henderson, 120 Ga. 781, 48 S. E. 334 (7); Henderson v. State, 123 Ga. 466, 51 S. E. 385; Moore v. Houston County, 124 Ga. 898, 53 S. E. 506; Prey v. Oemler, 120 Ga. 224, 47 S. E. 546 (2); Laffitte v. Burke, 113 Ga. 1000, 39 S. E. 433. See, also, Vanderford v. Brand, 126 Ga. 72, 54 S. E. 822; Sowell v. State, 126 Ga. 108, 54 S. E. 916; Seale v. State, 126 Ga. 648, 55 S. E. 472.

In one of the grounds of the motion for a new trial error is assigned upon the court’s having instructed the jury, in the language of the Boykin act, that “wherever it is proven that any person, association of persons, or corporation has, either as principal or agent, an established office or place where are posted or published, from information received, the fluctuating prices of cotton, grain, provisions, stocks, bonds,, or other commodity or thing of value, or either of them, this shall constitute prima facie evidence of guilt of the offense prohibited in section one of this act,” and as ground of error it-is 'set out that “the portion' of the charge complained of was also error, because the section of the Boykin act which provides that proving that one has an office, or place of business, where there are posted the fluctuating prices -of the market, constitutes prima facie guilt .of maintaining or operating an office or other place of business for the purpose of carrying on and engaging in the business commonly called ‘dealing in futures on margins,’ is void. It violates the fundamental principle which has come down to us from our forefathers, and which-applies to all criminal cases, that one charged with crime should be presumed to be innocent until proved guilty beyond a reasonable doubt. The provision of the act referred to absolutely makes the doing of a thing, not only innocent under the act, but distinctly permitted by the act, an evidence of the commission of a crime; that is to say, it makes the proof of an innocent thing prima facie evidence of the commission of a thing entirely distinct and separate which is made penal. Said provision of the Boykin act is. also void because it is a special act prescribing a rule of law where' there are general provisions of law covering the case. It makes a. particular rule of evidence, and raises a particular presumption as to a certain offense made penal, whereas there are general provisions of law (1) to the effect that in all criminal cases the defendant must’be proved guilty beyond a reasonable doubt; (2) that in all criminal prosecutions which rest upon circumstantial evidence .the circumstances must be sufficient to exclude every hypothesis other than guilt; otherwise, there can be no conviction. The provision of the Boykin act above referred to, therefore, violates the constitution of the State, that any special legislative enactment, where there is a general law applicable, is void.” Although presented to the trial court, this assignment fails to properly present the constitutional question, since no clause or paragraph . of the constitution is specified therein. We may be pardoned for saying, obiter, that, if these questions had been properly presented, the constitutional objections could hardly have been regarded as meritorious, in the light of the decisions of the Supreme Court in Banks v. State, 124 Ga. 15, 52 S. E. 74, 2 L. R. A. (N. S.) 1007, and Loeb v. State, 75 Ga. 263, and of this court in Mulkey v. State, 1 Ga. App. 521, 57 S. E. 1022.

In regard to the point raised by demurrer, as to the first-count of the indictment, that i't does not negative the idea that in the business alleged to have been carried on by the defendant-the actual delivery of commodities was contemplated, it will be noted that the title of the act does not incorporate this exception, iind, if this exception, exists at all, the act has nevertheless declared in general terms the dealing in futures on margins to be-unlawful. The spirit of the following cases so clearly confutes this point that a citation of them seems sufficient: Williams v. State, 89 Ga. 483, 15 S. E. 552; Rumph v. State, 119 Ga. 121, 45 S. E. 1002; Herring v. State, 114 Ga. 96, 39 S. E. 866; Kitchens v. State, 116 Ga. 847, 43 S. E. 256; Tigner v. State, 119 Ga. 114, 45 S. E. 1001; Sowell v. State, 126 Ga. 105, 54 S. E. 916 (2); Kemp v. State, 120 Ga. 158, 47 S. E. 548 (4); Seale v. State, 121 Ga. 745, 49 S. E. 740; Oglesby v. State, 121 Ga. 602, 49 S. E. 706. The first section of the act, in general terms, makes criminal the maintenance of an office or place of business for the carrying on of the business commonly called “dealing in futures on marginsand the words, “forbidden by this act,” are merely in the nature of an epithet, and do not limit the generality of the section. The second section of the act is a legislative .amplification of the definition of the words, “commonly called dealing in futures,” but does not have the effect of taking from them anything adhering in .their ordinary meaning. Not only is it unlawful to do those things commonly called “dealing in futures,” as the words in their ordinar}1- acceptation mean, but also to do any of the other things mentioned in the second section of the act, if they are not already included in the ordinary meaning ■of the words “dealing in futures.” An indictment is sufficient which states the offense in the ternis and language of the statute, or so plainly that the nature of the offense charged may be easily understood by the jury. Penal Code, §929.

The contention in the demurrer that the act prescribes no penalty is altogether without merit. A violation of its provisions is declared to be a misdemeanor; and by the Penal Code, §1039, a ■definite punishment for “every crime déclared to be a misdemeanor” is prescribed..

Error is assigned upon the following charge of the court: “If the defendant conducted an establishment where transactions •of the kind just described were permitted (that is, dealing in futures on margins, contrary to the Boykin act), allowed, and encouraged, to the defendant’s knowledge, and with his participation therein, or, that is, if persons came together and bought or sold commodities, with an agreement for future delivery, when it was not in good faith intended to deliver the commodities, and when the undertaking of the parties is to receive or pajr the difference between the agreed price and the market price at the time of settlement, then the defendant, if that is established be-' 3rond a reasonable doubt from the evidence in this case, would be guilty of maintaining a gaming-house, as defined in the second count of this indictment.” This raises the distinct question whether one who operates an office where “futures” are 'bought and sold is guilty of the offense of keeping a gaming-house. We do not think that at common law such an office would have been a gaming-house. We also recognize the distinction between the meaning of the words “betting,” “wagering,” “gaming,” and “gambling.” Yet we are constrained to hold that by judicial evolution and legislative enactment the common-law offense of keeping a gaming-house has been so broadened in its scope as to include any place wherein persons are allowed to assemble for the purpose of betting,, wagering, gaming, or gambling, and especially where such practices-are encouraged by the proprietor. We can not give full credit to the-spirit of the cases of Thrower v. State, 117 Ga. 753, 45 S. E. 126, and Jones v. State, 120 Ga. 186, 47 S. E. 561, without reaching-this conclusion. It may be that in the cases just cited the Supreme Court gave to the meaning of the word “gaming-house”' an unwarranted extension (we do riot say they did, or did not),, and it may be that a strained distinction may be drawn between the business under consideration in this case and that denounced in those cases; but if we give those cases full faith as precedents, as not only propriety, but also the constitution itself, requires us-to do, we are obliged to hold that a gaming-house is no longer-to be regarded as a place prohibited, as at common law, because-the spirit of amusement found there entices laborers and apprentices from their wonted toil, but as a place which it is criminal to-keep because persons congregate there to wager or to hazard money or other things of value, whatever be the device whereby it is accomplished, whether by games of amusement or otherwise. However, it may be noted that by English statute antedating our adoption of the laws of the mother country it was contemplated that-the word “gaming-house” should have a progressive meaning. By St. 33 Hen. VIII, c. 9, §11, it is enacted that “no manner of person or persons, of what degree, quality, or condition soever he- or they be, from the feast of the nativity of St. John the Baptist now next coming, by himself, factor, deputy, servant, or other person, shall for his or their gain,' lucre, or living, keep, have,, hold, occupy, exercise, or maintain any common-house, alley, or place of bowling, eoyting, cloysh-cayles, half-bowl, tennis, dicing-table, or carding, or any other manner of game prohibited by any estatute heretofore made, or any unlawful new game now invented or made, or any other .new unlawful game, hereafter to be invented, found, had or made,'upon pain to forfeit and pay for every day keeping, having or maintaining, or suffering any such game-to be had, kept, executed, played, or maintained within any such house, garden, alley, or other place, contrary to the form and effect of this estatute, forty -shillings.” 1 Hawkins’ Pleas of the Crown (8th ed.) 721. In the case of Rex v. Howell (K. B. 1672) 3 Keble, 510, “the defendant being convicted of keeping a common cock-pit six days, the court conceived it an unlawful game and took their measure by 23 Hen. VIII, of 40s. a day, though tire indictment were at common law.”

As to whether buying and selling cotton futures is within this category of gaming, wagering, and gambling, we quote from the opinion in Cunningham v. National Bank, 71 Ga. 403, 51 Am. Rep. 266: “But what is the transaction termed ‘futures?’ It is this: One person says that I will sell you cotton at a certaini time in the future for a certain price. You agree to pay that price, knowing that the person you deal with has no cotton to deliver at the time, but with the understanding that when the time arrives for delivery you are to pay him the difference between the market value of that cotton and the price you agreed to pay if cotton declines, and if cotton advances he is to pay you the difference between what you promised to give and the advanced market price. If this is not a speculation on chances, a wagering and betting between the parties, then we are unable to understand the transaction. A betting on a game of faro, brag, or poker can not be more hazardous, dangerous, or uncertain. Indeed, it may be said that these animals are tame, gentle, and submissive, compared to this monster. The law has caged them and driven them to their dens. They have been outlawed, while this ferocious beast has been allowed to stalk about in open mid-day, with gilded signs and flaming advertisements, to lure the unhappy victim ro ns embrace of death and destruction. What are some of the consequences of these speculations on ‘futures?’ The faithful chroniclers of the day have informed us, as growing directly out of these nefarious practices, that there have been bankruptcies, defalcations of public officers, embezzlements, forgeries, larcenies, and death. Certainly no one will contend for one moment that a transaction fraught with such evil consequences is not immoral, illegal, and contrary to public policy. In the case of Rudolf v. Winters, 7 Neb. 126, the Supreme Court of that State held ‘that a contract to operate in grain options, to be adjusted according to the difference in the market value thereof, is a contract for a gambling transaction which the law will not tolerate. It is contra bonos mores, and against public policy.5 We recognize this ruling to be sound, and we adopt the same. This was also ruled by the Supreme Court of Illinois. Pickering v. Cease, 79 Ill. 328. Likewise in Wisconsin. Exeringham v. Meighan, 55 Wis. 354, 13 N. W. 269; Barnard v. Backhaus, 52 Wis. 593, 6 N. W. 252, 9 N. W. 595; Lyon v. Culbertson, 83 Ill. 33, 25 Am. Rep. 349; Gregory v. Wattowa, 58 Iowa, 713, 12 N. W. 726; Hawley v. Bibb, 69 Ala. 52; Rumsey v. Berry, 65 Me. 574; Yerkes v. Salomon, 11 Hun (N. Y.), 473; Story v. Salomon, 71 N. Y. 420; Peabody v. Speyers, 56 N Y. 230; Knapp v. St. Louis, K. C. & N. Ry. Co., 6 Mo. App. 206; Gregory v. Wendell, 39 Mich. 337, 33 Am. Rep. 390, s. c. 40 Mich. 432; Sampson v. Shaw, 101 Mass. 145, 3 Am. Rep. 327; Clarke v. Foss, 7 Biss. 540, Fed. Cas. No. 2852; In re Green, 7 Biss. 338, Fed. Cas. No. 5751; Beveridge v. Hewitt, 8 Ill. App. 467; 5 Moore, 571; Thompson v. Cummings, 68 Ga. 124; Porter v. Massengale, 68 Ga. 296."

The same decision also quotes approvingly from Brua’s Appeal, 55 Pa. 298, as follows: “Anything which induces men to risk their money or property, without any other hope for return than to get for nothing any given amount from another, is gambling, and demoralizing to the community, no matter by what name it may be called.55

It is insisted, however, that since the current tax act (Acts 1905, p. 28) levies a tax of $1,000 upon all persons engaged in the business of buying or selling futures, such legislative sanction has been given to this business as to prevent the maintenance of an office for-that purpose from being a gaming-house. It is true that it was held in Miller v. Shropshire, 124 Ga. 829, 53 S. E. 335, that, “irrespective of whether a purely speculative transaction in cotton is a ‘gaming' contract, within the meaning of Civil Code, §3671, inasmuch as the General Assembly permits one paying a license tax to engage in the business of buying and selling ‘futures,' he can not be subjected to the penalty imposed by that section, which declares that ‘money or property delivered up upon' a gaming consideration ‘piay be recovered back from the winner by the loser, if he shall sue for the same in six months after the loss,5 or, if he shall fail to bring suit within that period, ‘by any person, at any time within four years [thereafter], for the joint use of himself and the educational fund of the county.5 55 However, by the Boykin act all legislative sanction is expressly withdrawn from such transactions. See Odell v. Atlanta, 97 Ga. 670, 25 S. E. 173. The Boykin act, being the latest expression of the legislative mind, controls; and it pro tanto repeals so much of the tax act ajs previously had the effect of sanctioning, for any purpose, dealing in futures.

The point is also made that this charge is entirely unjustified by the evidence; and it is contended that the evidence shows, without conflict, that Anderson was a broker, pure and simple, who acted only for parties in the State of Georgia, upon their employment, as their agent, for a commission paid by them; that he dealt only with parties outside the State in executing orders for future delivery; and that in all cases the parties outside of the State and C. N. Anderson contemplated actual delivery. A very similar contention was disposed of in Jones v. State, supra. As was said there: “When a man desired to make a bet, he filled out an application to be telegraphed to Boots in New Orleans, and at the .same time handed in the amount of money he wished to risk on the horse selected. This money was received by Jones, or one of his agents. So far as appears from the record, the applicant never Teceived any notice, before the race was run, as to whether his bet was accepted or rejected. After the race was over, the result of the race was announced, and another agent of Jones, in the same house, paid the winnings to those who had won. Where the bet was lost, the money which had accompanied the application was deposited by Jones to the credit of Boots. Under this state of facts we think that the money was hazarded in the house in question. The bettor deposited it there, and lost it if he failed to win, •or regained it if - he did win. The whole transaction as to the money took place in this house. This.was the very object for which the house was kept. It was of itself an invitation to the people to go to that place and make their offers to bet, depositing their money with the proprietor of the house. While there is no law in this State to punish the bettors, there is a law for the punishment of the proprietor of such a house in which people can meet daily to bet on horse races and hazard their money thereon. The money was not sent to New Orleans. It was placed in the keeping of the accused, and he kept it if the bettor lost, or repaid it, together with the winnings, if the bettor won. It is clear to our minds that the money was hazarded in the house kept by Jones. The fact that Eoots had the right to accept or reject an offer to-bet makes no difference. The proof shows that he did accept bets from several of the witnesses, or at least that they were paid or not according -to the .result of the race. It seems to us that the whole system was a mere device or sham to evade the criminal law upon this subject — an effort'to evade, based upon a technical definition of the word ‘betting/ and an artificial distinction as to where the bet was consummated.. As was once said by JudgeBleckley: ‘It is something easier for an offender to baffle the-dictionary than the Penal Code; for the former is perplexed with verbal niceties and.shades of meaning, while the latter grasps in a broad, jDractical way at the substantial transactions of men.’” The facts of this case are so very similar to those of the Jones case-as to make further comment unnecessary.

We are not .unmindful of the fact that in the ease at bar the defendant furnished to his customer a statement of business on which were printed the words: “Actual delivery of property bought- or sold upon 'orders in all cases is contemplated and understood. ” But we are not forgetful of the fact that in all the transactions of the defendant’s office no actual delivery ever took place. If actual delivery was “contemplated,” its inchoate entity never developed into tangibility. If it was “understood,” the temptation to ridicule becomes irresistible. One of the definitions of the word “understand” is “to supply mentally as in explanation of an ellipsis,” and the course of dealings which took place through defendant’s, office will not authorize a, wider meaning, for from the evidence-there was an entire ellipsis of actual deliveries. -Such devices-rarely fool intelligent judges or. juries. Only the- very simple-would be deceived into believing that a house of assignation was-a respectable hotel because there might happen to be a notice posted at the door stating that “Ladies accompanied by gentlemen other than their lawful husbands will not be furnished accommodations here.”

We have set out at great length, we fear unduly so, the evidence in this case. But we think that through this full statement-of the facts as shown on the trial any impartial mind will be able-to discover that a device, elaborate in' detail, was planned for the-evasion of the law, but that, despite it all, the defendant failed to> conceal plain and unmistakable evidences of his guilt. We have-no hesitancy in saying that the evidence authorized the verdict, under both counts; but, since it will be unnecessary for us to pass upon errors in instructions given or refused as to matters relating' only to the first count, if the conviction can be upheld under the second count (for only one sentence was imposed), we may rest, our judgment upon the sufficiency of the evidence as to the conviction on that count alone. In this view of the case, errors, if any were committed, which relate only to the first count are immaterial,, and therefore would not authorize a reversal. Having held that, one who keeps an office for the purpose of affording an opportunity to persons to buy and sell futures on margins can be convicted of' keeping a gaming-house, irrespective of whether the contracts are-telegraphed out of the State or not, we have no difficulty in sustaining the conviction. It is not necessary that we should pass-upon the question whether it is essential that the wagering intent. —the intent to speculate, without bona fide contemplation of actual delivery- — -should be present in the minds of both the contracting-parties before the transaction is unlawful; for in every trade which took place through the defendant’s office, so far as the evidence-discloses, and, therefore, so far as the legality of this conviction is-concerned, it is conclusively shown that no actual deliveries were-had, and that no such intention bona fide existed in the mind of either party. When one of the defendant’s customers lost, the other party to the contract did not require delivery. He took the-money deposited with the defendant. When the customer won,, this undisclosed counter party did not tender delivery; but Anderson at once paid over to the customer the amount of his winnings.. In such a course of dealings the irresistible inference is that both parties acted upon the contract as a purely wagering transaction,, and that the defendant was the mere go-between, the mutual agent-of both parties. If two gentlemen had met in the defendant’s-office, and had called for cards and poker chips, and the defendant had furnished them, charging so much for the chips, being stakeholder as it were, and at the end of the game had cashed these chips, would he be heard" to assert, in defense to an indictment for keeping a gaming-house, that one of the gentlemen did not intend to play for money, that he was merely playing for amusement,, that in fact, at the very time of paying for his chips, he signed. a written statement that it was always contemplated and understood that the playing was for amusement only, and not for money or other thing of value? No matter how solemnly either one or both of these gentlemen who played at this game of futures may have asserted that actual delivery was contemplated and understood, as matter of fact they did not play that way. The record discloses the identity of some of the gentlemen who played on one side of this fascinating game, but it is silent as to who was the counter party or parties. Be that as it majq it is very clear that this undisclosed player had a representative present in the transaction, who took care of his winnings and who paid his losses— the defendant. He may not have known the defendant, and the defendant may not have known him; but one may be an agent for an unknown and unseen principal.

These outlawed occupations often attempt to conceal their true inwardness by devious ways and indirect dealings; but the law looks only to the real substance of the transaction. Think of the shrewd device by which, on January 1, 1907, when the Boykin act went into effect, the door between the two rooms formerly used en suite by the defendant was closed and nailed up, and the room, in which continued those acts denounced by the statute as evidences of guilt, was transferred to the apparently complete custody of the Atlanta Commercial Exchange, an organization containing in its membership several excellent gentlemen who needed market quotations for absolutely legitimate purposes, as well as several others who had no such legitimate uses for them; e. g. telephone employees who bought and sold cotton. But who paid for the maintenance of this room where the fluctuating market was represented on the blackboard? Will it be contended that the office rent, the wages of the employes, and the annual rental, of approximatély $12,500, for the leased wire to Cincinnati, were paid out of the modest sum of $1 per-month contributed by each of the 100 members of this exchange? Is there not some significance in the fact that a telegraph instrument in the defendant’s office ticked simultaneously with the other on the same wire in the quotation room, and that the Odell Stock & Grain Company paid the drafts for-the rent of both the rooms; that the Odell Company paid the rent, though the lease stood in the name of Campbell, and that to Campbell the defendant’s customers telegraphed; and that from Campbell came the statements in return, and that this telegraph wire had one terminus in Odell’s office in Cincinnati and the other in this quotation room, touching the defendant’s office en passant? Such a tangled web to be so innocent! Perhaps the jury may have conceived the idea that the defendant and Campbell were merely the Odell Company’s agents; that this same Odell Company was the undisclosed principal, whose losses the defendant paid, whose winnings he collected. If they did, we shall not say that they have thereby outraged logic.

We find the trial free from material error, and the verdict well supported by the evidence. Judgment affirmed.


author: Russell, J.

text:
    174.
    HUGHES v. THE STATE.
    1. Neither a policeman nor any Other arresting officer has any authority, without a warrant, either upon suspicion or information, that another is carrying a concealed weapon, to arrest the latter and search his person for the purpose of ascertaining whether or not such person is in fact violating the law prohibiting carrying concealed weapons. Even if the person arrested was so violating the law, the offense was not, in legal contemplation, committed in the presence of the officer, and' such an arrest, search, and seizure are unauthorized by law, and are, within the meaning of the constitution, unreasonable.
    2. As a general rule the law requires a warrant in order to render an arrest legal, whether it be made by a policeman or by any other public officer. There are three exceptions to« this rule: where an offense is committed in the officer’s presence; where the offender is endeavoring to escape; and where, from other cause, there is likely to be a failure of justice, for want of an officer to issue a warrant.
    3. Evidence of guilt, which the defendant, either directly or indirectly, is compelled to disclose by an unlawful search and seizure of his person under an illegal arrest, is not admissible i . a criminal prosecution against the person thus illegally arrested.
    Certiorari, from Fulton superior court — Judge Pendleton. November 24, 1906.
    Argued January 28,
    Decided May 24, 1907.

      Frank L. Haralson, for plaintiff in error.

      C. D. Hill, solicitor-general, Lowry Arnold, contra.
   Russell, J.

The bill of exceptions assigns error on the part of the judge of the superior court in overruling a certiorari. The plaintiff in error was convicted, in the criminal court of Atlanta, of the offense of carrying a pistol concealed. He sought to have his case reviewed by the superior court, and to that end he presented a petition for certiorari, which was duly sanctioned. The petition showed that the only evidence adduced by the State, upon which a conviction could be had, was objected to on the trial, and a timely motion was made to withdraw it from the consideration of the jury, “because the defendant was forced to produce evidence against himself; the arrest being illegal and the evidence illegal.” The assignments of error, in the petition for certiorari, are: (1) That the verdict is contrary to law and contrary to evidence; (2) that tire evidence complained of and asked to be ruled out by the court was -’nropcrly admitted, because this evidence was obtained by an illegal search of defendant’s person, which forced defendant to furnish evidence against himself, and the court committed error in not ruling it out upon objection or motion; (3) because the court erred in its charge, as set forth in this petition; (4) because l lie court erred in not ruling out the evidence complained of as being illegally obtained from J. E. Chapman (the only witness for the State), on motion of defendants counsel, as set out in this certiorari.

The only witness for the State testified as follows: “On Saturday night, September 22, 190G, I saw the defendant and another man turn from Whitehall viaduct, at the ticket office of the W. & A. Eailroad, and start across the passway from Peachtree viaduct to Broad street. Myself, George Stein, and Mr. Hutchins, both city policemen, followed them, overtook them, and searched them, and found on the person of the defendant a pistol. The pistol was in his right hip pocket under his coat. We had hold of him when the search was made. We then carried him down to the police station, where we entered a charge against him of concealed weapons. The defendant and the man with him were walking leisurely along the passway when we overtook them. The defendant had not violated any law that we knew of. He was not intoxicated. We did not have any warrant or any other legal process against him. We had no authority to make the search when we found the pistol. He was tried on the charge before Judge Broyles, the recorder, and bound over to this court by him. I did not see the defendant do anything in violation of law before we took a-hold of him and searched him. He was being held by the other policeman while I made the search. He made no attempt to get away or to resist the officers.” This was the whole of the State’s case.

The defendant proved by both of the witnesses who were with him, -and also asserted in his statement, that he was quietly and peaceably walking a public thoroughfare on a peaceable mission; that he was not- talking in a loud tone of voice, nor were his companions, and that he turned back because he saw a mob gathering at the corner of Decatur, Whitehall, and Peachtree streets, and he was walking leisurely along, when three city officers walked up behind him, two of them grabbed him, and they immediately commenced searching him; that he was perfectly sober, and was not connected with the mob or with any one connected with the mob; that he is a law-abiding citizen, a carpenter by trade, who, receives good wages and sticks closely to is business. The defendant did not say whether the pistol was concealed or not. Both of his witnesses were inclined to the belief that the pistol was not concealed, while they only testified that they had seen it a short time previous to the arrest.

The petitioner in certiorari excepted to the following charge -of the court, which was admitted by the answer to be correctly set forth: "You have nothing to do with the arrest of the defendant, or the circumstances attending his arrest. It is not a question with you whether the arrest was legal or illegal, and whether the •search and seizure of his person was illegal or not, or whether or not in this search they found a pistol on the defendant. The only question for you to determine is whether or not the defendant had on his person, ‘not in,an open manner and fully exposed to view, a pistol.’ The question with you is (and it is the only question), did he have this pistol concealed? I charge you that this is the law, and that the jury is bound to take it as the law. As fo whether or not the officers in this case had a warrant for the defendant, or whether or not he was involved in violation of some law, you have nothing to-do. The question for you to decide is whether or not this pistol was concealed.”

The defendant’s motion for new trial having been overruled, and his certiorari dismissed, the question very clearly presented to us by the court’s ruling on the defendant’s objection to the evidence and to the charge of the court is whether the evidence objected to should have been excluded as illegal; in other words, whether the jury can consider, as the judge charged them that they could,, evidence from a witness whose only knowledge of the facts was derived by force, after an illegal arrest of the defendant by such witness, acting as an officer. The question has already been decided by this court in Hammock v. State, 1 Ga. App. 126, 58 S. E. 66. But. this ease is an even more aggravated instance of a-violation of the-right of personal libert3r, and of the constitutional provision which, protects the citizen from being compelled to testify against himself,, than the Hammock case. In that case the sheriff at least acted upon information that the defendant was guilty of the offense. ■ Tn the present case an orderly citizen, on a peaceable mission, so far as the evidence discloses, while walking on the public thoroughfare,, is assaulted, seized, searched, and deprived of his propert}^, either upon bare suspicion or from mere curiosity. While one of the officers holds him, another searches his person and discovers a concealed pistol. The defendant was violating one law. To get proof' of this the witness was compelled to violate two. '

With the utmost abhorrence and detestation of the practice of' canying deadly weapons concealed, we can not give our sanction to a prosecution for crime which involves a commission of more-crimes. Unless two wrongs make a right, prosecutions and convictions on evidence which can only be obtained by graver violations of the law can not be countenanced by any consideration of' sound public policy. Surety, unless the law recognizes favorites-among crimes and gloats with fond partiality in the prosecution of one offense more than another, it ought not to be necessary to-abuse the liberty of the citizen and compel him, directly or indi— rectty, not only by fear, but by superior force, to furnish evidence-against himself. Under our constitution no witness is compelled1 to testify against himeslf, or even to incriminate himself, and all! evidence obtained by force or fear is justly outlawed. As well said! by Justice Lumpkin, rendering the opinion in Pickett v. State, 99 Ga. 15, 25 S. E. 609, 59 Am. St. Rep. 226: “While . . an officer may, without a warrant, make an arrest for an offense committed! in his presence, he has no authority, upon bare suspicion, or upon mere information derived from others, to arrest a citizen and! search his person in order to ascertain whether or not he is car— 7wing a concealed weapon in violation of law. The constitution of' this State expressly declares in the bill of rights that ‘the right of the people to be secure- in their persons, houses, papers and effects, against unreasonable searches and seizures, shall hot be violated.’ ... If any search is unreasonable and obnoxious to our fundamental law, it is one of the kind with which we are now dealing. Even if the person arrested did in fact have a pistol concealed about his person, the fact not being discoverable without a search, the offense of thus carrying it was not, in legal contemplation, committed in the presence of the officer, and the latter violated a sacred constitutional right of the citizen in assuming to exercise a pretended authority to search his person in order to expose his suspected criminality.”

In our opinion the ruling of the Supreme Court in the Pickett case is controlling, at least so far as the offense of carrying concealed weapons is concerned; and, inasmuch as it has not been reviewed and expressly overruled, subsequent decisions apparently in conflict therewith must yield to the older adjudication. We are aware that in Dozier v. State, 107 Ga. 708, 33 S. E. 418, it was-held that it was not error to allow the sheriff to testify that, the accused being in his custody under a warrant for a criminal offense, he searched him and found a pistol concealed in his pocket; but in that case the ruling was put expressly upon the ground that the defendant was not compelled to furnish the evidence, and the case was thus distinguished from the case of Evans v. State, 106 Ga. 519, 32 S. E. 659, 71 Am. St. Rep. 276. The Dozier case affords no parallel for the present case. In the first place, as shown by the conclusion of the opinion, the defendant’s own statement demanded a verdict of guilty. ' “He stated that hd had the pistol . . . in his hand, that when he saw the sheriff coming he dropped it in his pocket, and the sheriff searched him and found it in his pocket. So that, in any event, the conviction must properly stand.” So far as the record in the Dozier case shows, no-force was necessary to get the pistol from the prisoner; and he was in the lawful custody of an officer, who had arrested him on a warrant for a different offense, and whose duty it was, at least before confining him in jail, to search him and be certain that he had no instrumentalities concealed about his person by which he might effect an escape. The trial judge seems to have framed his charge in accordance with the decision in the Dozier case, without taking into consideration the fact that, throughout the opinion, it is expressly distinguished from those 'cases, previously decided] in which the defendant was compelled to furnish evidence against himself and where there was no lawful arrest, and the further fact that, for that reason, the rule in the Dozier case was never intended to be applicable to a case such as this, where the incriminating evidence was forced from a party not under lawful arrest, but illegally and lawlessly detained.

It must be remembered that when Judge Lumpkin, in the Williams case, 100 Ga. 521, 28 S. E. 627, 39 L. R. A. 269, used the language: “We know of no law in Georgia which renders inadmissible in evidence the fruits of an illegal and wrongful search and seizure; nor are we aware of any statute from which it could be logically gathered that the admission of such evidence violates any recognized principle of public policy,” the words were merely used arguendo,, and were addressed to an entirely different proposition from the one before us. The objection to the evidence in the Williams case was “that, should it be admitted to the jury, it would violate the constitutional and inalienable right of defendant to be secure against such searches and seizures; and she then and there expressly claimed this right, privilege, and immunity, not ■only under the State constitution, but as one to which she was entitled under the United States constitution,” etc. And by a careful reading of the opinion it will be seen that all of the reasoning of the opinion is addressed to the inquiry as to whether the contention of the accused, that- her constitutional rights were infringed •by the ruling of the trial judge upon the specific objection made, was tenable. The decision was that the objection made was not tenable, for the reason that, in the absence of express legislation directed against the misconduct of private persons, these rights can not be enforced so as to protect the citizen. In the words of the decision (page 519 of 100 Ga., and page 627 of 28 S. E. [39 L. R. A. 269] ) : “As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures, was to place a salutary restriction upon the powers of government; that is to say, we-believe the framers of -the constitution of the United States and of this and other States merely sought to provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful any unreasonable •search or seizure. This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in mo event be made lawful; upon executives, so that no law violative •of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce •as unlawful every unreasonable search and seizure, whether confessedly without any color of authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their ■own volition, surely none of the three divisions of government is responsible.”

To confirm what we have said above with reference to the Williams case, we need only add that in the Evans case, 106 Ga. 522, 32 S. E. 660, 71 Am. St. Rep. 276, a case practically identical, as -to the facts, with the case at bar, the Supreme Court, all the •Justices concurring, spoke as follows: “In the case of Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269, no such question as the one now under discussion was raised •or decided. In that case an officer took from the person of the accused marked coins which were afterwards used in the evidence ••against her. . . The decision in that case simply holds that the constitutional provision as to unreasonable searches and seizures did not render the evidence inadmissible. It was there said that the purpose of the constitutional provision -was to deter the lawmaking power from authorizing or declaring lawful any unreasonable search or seizure, and to prevent courts and executives from enforcing any law which was violative of this provision, but that it was not intended to operate so as to prevent the courts from receiving evidences of crime, although they might have been obtained by an illegal and unreasonable search and seizure. It would seem from these cases that the law in this State is that evidences of guilt ■found upon a person under legal arrest may be used in evidence against him, but that, where a person not in legal custody is compelled to furnish incriminating evidence against himself, the .evidence is not admissible. The ruling made in the Day case, 63 Ga. 667, constrains us to reverse the judgment of the court below in refusing a new trial, on the ground that the evidence complained -•of was improperly admitted.”

The case of Duren v. Thomasville, 125 Ga. 1, 53 S. E. 814, is not similar to the case before us. The most that can be said of the evidence procured by search in that case is that it furnished an incriminatory circumstance which, when taken in connection with other proof in the case, might lead to the conclusion of the defendant’s guilt; and the same is true as to the knowledge obtained by search in the Williams case. In the case of concealed weapons the unlawful search and seizure, if it discloses anything, affords; proof of the only fact necessary to constitute a violation of the law. And this line of distinction between cases where only incriminatory circumstances are developed, and a case where direct evidence of absolute guilt, is obtained, is recognized in frequent decisions. It is not’ necessary, however, to’ further distinguish the Duren case, because, in .so far as it' conflicts with the Evans ease, above cited, it must yield to the older adjudication. But, even under the ruling in the Duren case, the evidence in the present case should have been rejected, when the motion was made asking that it be withdrawn from the jury; for, if the criterion be, “Who furnished or produced the evidence?” and if it be true that “if the person suspected is made to produce the incriminating evidence it is inadmissible,” as held in the Duren case, the evidence of the State’s only witness in this case was inadmissible, because the defendant was forced to produce the evidence by being so completely overpowered that there was not even a chance to resist. If not bound by the previous decisions of the Supreme Court, the writer would unhesitatingly hold that evidence procured while a prisoner is under arrest, whether such arrest were lawful or unlawful, should be excluded; but the ruling of the Supreme Court, that where a person not in legal custody is compelled to furnish incriminating evidence against himself, the evidence is not admissible, itself requires the grant of a new trial in this case.

Judgmént reversed.