5 Ga. App. 766 | Ga. Ct. App. | 1908
Marie Coleman was convicted of the offense of keeping a lewd house, and excepted to the overruling of her motion for a new trial. Several witnesses testified, that the defendant kept and maintained a house which had the general reputation of being a lewd house; that the defendant and the other women living there had the reputation of being lewd women; that men frequented the house at all hours of the night and day; that when the women appeared on the streets they were nicely and neatly dressed, and, so far as witnesses knew, they were not married and had no lawful vocations. One of them, a policeman, said that he had been to the house several times to serve processes and papers and had seen the women walking about the house, rather loosely dressed, in company with men who did not board there; and had heard them engaged in profane and vulgar conversation. He had also seen the women drinking with the men.
A person who maintains a place where fornication or adultery is practiced is guilty of the offense of keeping a lewd house. Penal Code, §391. The practice of adultery or fornication at the house is the very gist of the offense; and the State must prove that fact beyond a reasonable doubt, before the jury would be authorized to convict the defendant. The method by which the ultimate fact may be proved is a different matter; but it must be proved either by direct or circumstantial evidence. The jury may infer the existence of the fact from relevant and probative circumstances ; and where the circumstances detailed in the charge of Prejudge appear in the evidence and the jury find the defendant guilty, the verdict will not be set aside on the ground that it is without evidence to support it. Mimbs v. State, 2 Ga. App. 387 (58 S. E. 499); Hogan v. State, 76 Ga. 82. But the jury were not bound to find the defendant guilty, even though they believed' the circumstances in fact existed; because they might have taken the view that they could not infer therefrom beyond a reasonable doubt the ultimate fact which alone would legalize the conviction. When the judge charged the jury that “it is not incumbent or necessary for the State to prove that there were really acts of adultery or fornication committed at such place,” he made an inaccurate statement of the law. The error was not cured by the: subsequent statement that if the jury believed the circumstances', enumerated, that would be sufficient evidence. As was said by Judge Bleckley, in the case of Kinnebrew v. State, 80 Ga. 232, 237 (5 S. E. 56), “The logical sufficiency of the facts to warrant the inference, and also, the existence of the facts themselves, ought,
In the case at bar the charge of the judge in all probability took from the jury their right to acquit the defendant under the evidence introduced before them. The jury had a legal right to acquit the defendant, even though they believed all the State’s evidence,- if that evidence failed to satisfy them beyond a reasonable doubt of the existence of the ultimate fact which is the gist of the offense charged, to wit, that acts of adultery and fornication had been practiced at the house which the defendant is alleged to have maintained. The charge was apt to make them believe that under that evidence they had no discretion but to bring in a verdict of guilty. Compare Patterson v. State, 85 Ga. 131 (11 S. E. 620); Hayden v. Neal, 62 Ga. 365. Judgment reversed.