10 Ga. App. 70 | Ga. Ct. App. | 1911
The defendant was indicted for violating section 382 of the Penal Code (1910), which makes it a misdemeanor for any person “to maintain and keep a lewd house or place for the, practice of fornication or adultery, either by himself or others.” The State relied on what is the usual method of proof in such cases, namely, proof by witnesses that the house in question had a general reputation of being a lewd house, and that certain women who lodged there from time to time had a general reputation of being lewd women, supplemented by proof of certain specific acts of conduct which took place from time to time, and which were indicative of the fact that fornication was probably going on in the house. Only one act of sexual intercourse was directly proved, and it was
1. One of the points stressed in.the argument raises the question as to whether a house devoted chiefly to other purposes may also be a lewd house, within the purview of the statute. It is insisted that merely for an innkeeper to furnish lodging to guests of a lewd character, who, with his knowledge or by his connivance practice fornication in the house during their stay there, more or less transient, does not render the proprietor indictable for maintaining a house for the practice of fornication. We think that a house may be a lewd house, within the purview of the statute, although it is devoted also to other purposes; and if an innkeeper furnishes lodging to lewd guests, and allows them, with his knowledge or acquiescence, to carry on their unlawful practices in his house, he is guilty of violating the statute, notwithstanding the greater portion of his guests may be decent people, and notwithstanding the greater portion of the business carried on in the house may be of a legitimate nature.
2. In order to convict the proprietor of a lodging-house of maintaining it as a lewd house, it is necessary to show, directly or circumstantially, that he knew of the lewd practices which were going on therein, or, if he did. not positively know of them, that he was in possession of such facts as to charge him with what is commonly known as “constructive knowledge.” He can not shut his eyes to what is going on around him, for the purpose of avoiding knowledge, and then defend on the ground of his lack of knowledge. The plaintiff in error contends that the evidence was insufficient to charge him with knowledge in the present case; no actual knowledge being directly shown. After carefully reading the record, we can not sustain this contention. In the first place, it is shown that the house had achieved a general reputation in the community of being a lewd house, and that the accused himself personally conducted the place. This alone would be sufficient to authorize the jury to believe that he had such knowledge of the situation as to
3. A motion was made to exclude the testimony of a certain witness, who, on direct examination, had testified that the reputation of the house was bad, and that the general reputation of the women who stayed there was that they were lewd, and, on cross-examination, testified that he had heard people on the streets talking about it; that he could not tell how many, but that he was sure there were as many as half a dozen, and maybe more; that he could not be exact as to how many; and that he knew nothing of the place of his own knowledge.- The objection to this testimony was that the witness disclosed that he did not have such a knowledge of the general reputation of the place as to make his testimony admissible on that subject. We think that his testimony was properly admitted. -The witness qualified by stating that he knew the general reputation. This rendered his testimony prima facie admis
General reputation is what people in a community commonly say as to a thing. A person may know it, without having talked to very many in the community. He may know it without being able to give the names of any great number of persons with whom he has conversed on the subject. For instance, there are many of us who know that this man or that bears a good or bad general reputation in the community, and yet, if we were called upon to give the names of those persons with whom we had discussed the character of the person in question, we would find it difficult to furnish the names. The common consensus of popular opinion on the subject may be firmly fixed in our minds, though we have forgotten or are unable to recall the separate transactions or conversations from which we gained our knowledge of the matter.
4. The court permitted a witness to testify, that he was on a train one day coming into Valdosta (where the house in question was); that he sat on a seat by himself; tlrat a woman came up and engaged him in conversation, and asked him where he was going; that he told her that he was going to Valdosta; that she said she was going there, too; that he asked her if she was going to visit relatives; that she said, “No,” she was up “on a pleasure trip,” and stopping at the defendant’s house; that she then said “I charge $2 for my pleasure.” He further testified that when the train reached Valdosta the woman got off and did in fact go to the house of the defendant. This testimony, so far as it related to the conversation on the train, was objected to on the ground that it was hearsay, and the court overruled the objection. One of the ways of proving that a house is a lewd house is to prove that it is ' frequented by lewd women. Of course, for a lewd woman to go to a house on a single occasion would not characterize it as a lewd house; and if this evidence, which was objected to, stood alone, there would be no doubt that it would be wholly inadequate to authorize a conviction. It would be necessary to show many other things, one
The defendant contends that her conversation (in the absence of the defendant) could not be proved for the purpose of showing the lewdness of her character — that it was mere hearsay. As Professor Wigmore says in his work on Evidence (section 1768) : “The prohibition of the hearsay rule, then, does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a' comparatively simple matter. The hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.” Words, like acts, may constitute conduct, and the expression “verbal acts,” is not uncommonly found, and it is used to express the notion of words having probative value as conduct. Now, if this woman in question had been guilty of lewd conduct on the train, had committed such acts as in the minds of all reasonable men would have characterized her as a whore, certainly the State could have proved those acts, though committed outside of the defendant’s presence, for the purpose of showing that she was a lewd woman, and could have coupled this with other evidence showing that this woman, thus proved lewd, had subsequently stayed in the defendant’s house. Indeed, in the present case, the State proved the lewdness of a number of boarders at the defendant’s inn by showing that they had previously resided in known lewd houses, and counsel seem to have conceded that this form of proof was allowable. The language a woman uses may tend to characterize her as a whore with almost the same certainty as lascivious conduct short of the very criminal act itself. To the
5. Exception is taken to the following charge of the court: “It is not necessary, in order to make out the offense charged, that the State shall prove that any particular act of fornication or adultery was committed, if you are satisfied that the house was kept as a lewd house.” Counsel cite Coleman v. State, 5 Ga. App. 766 (64 S. E. 828). In that case the court charged the jury that “it is not necessary for the State to prove that there were acts of adultery or fornication committed at such house.” The court further charged the jury that “it would be sufficient if the State proves to your reasonable satisfaction that she [the accused] bears the general reputation of being a lewd woman, and that the house or place' kept by her bears the general reputation of being a lewd house or place of prostitution, and that the women there at that house bear the general reputation of being lewd women, and that men were seen to frequent the place by day and by night.” This court held that the charge just quoted was erroneous, that it was necessary for the State to prove that acts of adultery and fornication were committed at the house, and that it was not sufficient for the State merely to convince the jury that the house or the women bore the