The law stated in the syllabus of the majority opinion is sound and I concur therein, but I do not concur in the application of the principle stated in the sixth point of the syllabus to the facts established in this case, and think the verdict of guilty and judgment entered thereon should be upheld.
In all prosecutions for crime there are two basic elements to be established beyond all reasonable doubt: first, that a crime has in fact been committed; and, second, that the accused is the perpetrator thereof.
In this case the first element was established by clear, cogent and direct evidence. Unquestionably a lottery was set up and promoted at the time and place charged in the indictment as amplified by the bill of particulars. No reasonable doubt exists as to whether a lottery was set up, promoted and permitted in the Plaza Cigar Store at 121 Summers Street, in the City of Charleston, during the month of December, 1944.
The evidence adduced by the State fails to show that defendant Hudson controlled the premises where the lottery was in operation. Therefore, the charges contained in the second, third and fourth counts of the indictment were not sustained by proof. Likewise there is no evidence that Hudson bought, sold, transferred or had in his possession any chances, tickets and shares of tickets in the lottery for any purpose, and, therefore, proof of the charge contained in the fifth count of the indictment failed.
But I think there was ample proof to sustain the charge that defendant Hudson "did set up, promote and was concerned in managing and drawing a lottery", the charge contained in the first count of the indictment. *Page 672
The lure of gambling, with its insidious inroads on morality, appeals to the baser side of human nature, and the deleterious effect on its votaries calls for stern treatment of those who promote and encourage gambling for gain. Such persons "toil not neither do they spin," but derive their livelihoods from their foolish and unwary dupes.
Considering realities rather than theories, the proof adduced by the State shows that a gambling establishment was conducted on one of the principal streets of the capital of this State, to which members of the public seem to have been freely admitted. Such condition is of great danger to public welfare, and every means should be adopted to suppress and eventually eliminate it.
Accused was present at the time and place when and where the crime was committed. According to the proof, he moved freely back and forth behind the counter of the cigar store, from which it is reasonable to infer that defendant was not an innocent bystander.
Defendant furnished money from his pocket to his co-indictee, Geneva Beane Veltri, to make good the losses sustained in the operation of the "twenty-six" game, which was conducted at the same time and in the same place as the lottery. That circumstance is strongly indicative of a promotional or proprietory interest in the gambling there being carried on, including the lottery. The inferences to be drawn from the fact that defendant was present behind the counter and furnished money in another game are those authorized by common sense, and require no citation of authority to give them full force and effect. This record clearly discloses a systematic course of criminal conduct, a gambling establishment in which varieties of gambling devices were offered to the public, seemingly in an open manner.
At the time of the raid defendant attempted to flee with a cigar box containing money. The sole fact of flight by the accused from the scene of a crime is not sufficient to support an inference of guilt; but it is evidence *Page 673 tending to show guilt, and is to be considered by the jury and given such weight as the jury may deem proper, in connection with other facts and circumstances. Jenkins v. Commonwealth,132 Va. 692, 111 S.E. 101; Chandler v. Commonwealth, 135 Va. 486,115 S.E. 703; Duty v. Commonwealth, 137 Va. 759,119 S.E. 62; 2 Wharton's Criminal Evidence, 10th ed., 1494; Underhill's Criminal Evidence, 4th ed., 471.
The inculpatory circumstances here shown are in no wise explained. It is true that defendant's presence, his use of money and his flight, considered separately, are not sufficient to sustain a verdict of guilty; but when taken together, the cogency and sufficiency of the evidence are beyond cavil.
If defendant was a bystander, why did he remain behind the counter? If he had no interest in the gambling establishment, why did he furnish money out of his pocket to make good losses in the twenty-six game? If he was innocent, why did he attempt to flee or fail to explain such attempt? Upon consideration of these facts it is reasonable to infer that defendant was guilty. Clearly, defendant Hudson had some interest in the operation and maintenance of the gambling establishment, including the lottery; otherwise there is no rational basis explanatory of his conduct.
The circumstances established by the State without dispute, clearly show the guilt of defendant Hudson to the exclusion of every reasonable hypothesis; and, therefore, I would affirm the judgments of the Intermediate and Circuit Courts of Kanawha County.
I am authorized to say that Judge Fox concurs in this dissent.