113 Ga. 444 | Ga. | 1901
Lead Opinion
“ In view of the large number of acts, passed within recent years, purporting to establish city courts with direct writs of error to the
Much of the opinion delivered by Mr. Justice Little in the case' above mentioned is on the same line. He sets forth with great strength, force, and clearness the reasons why it is not to be supposed that the convention meant to authorize the General Assembly to establish “ city courts ” in municipalities of small population and limited business, with'writs of error therefrom to this court. Those reasons need not- be repeated here. All of us, including even Mr. Justice Cobb and Mr. Justice Fish, who were not, for the reasons stated by the former, able to assent to all of the propositions laid down in that opinion, felt then, and feel now, that from a moral standpoint the truth had been told therein. Four of us were also persuaded that when the question now before us arose, as was anticipated, this same truth could be made apparent from the standpoint of constitutional interpretation. After anxious deliberation, all of us except Mr. Justice Little are now forced to the conclusion that this can not be done. While strongly believing that legislation like that under consideration violates the spirit of the fundamental law, and therefore gravely doubting the constitutionality of many of the city-court acts, including that relating to Carrollton, in so far as they authorize writs of error, we can not, because of this doubt, adjudge that they are, in the respect indicated, null and void. Mere doubt as to the constitutionality of a given enactment settles its validity.
The motion to dismiss the writ of error must be overruled.
If it was, in fact, a “ common, ill-governed, and disorderly ” establishment, and the keeping and maintenance of it encouraged idleness, or gaming, or drinking, or other misbehavior, the keeper was guilty of a misdemeanor. So was she if she kept and maintained the house in such manner as to cause “ common disturbance of the neighborhood or orderly citizens.” In prescribing what consequences must result from the keeping of a disorderly house in order to render the act of so doing criminal, the law mentions them disjunctively. The indictment charged, conjunctively, that all of these consequences, save only the encouragement of “misbehavior” other than idleness, gaming, and drinking, resulted in the present instance. Must the conviction fall because there was no proof as to the encouragement of gaming ? It was certainly not necessary to allege anything with respect to this point; and if the indictment had been silent on the subject, no evidence concerning it would have been called for. The general rule is that the State will be required to prove all facts alleged, even though immaterial and not such as it was necessary to set forth in the indictment. This rule, however, usually relates to facts which identify the transaction under investigation and serve to distinguish the criminal act charged from any other of a similar nature. In the present case the act charged was the keeping of a disorderly house. To the evidence tending to prove that the accused did keep in a disorderly manner a particular house nothing as to the identification of the house or as to the fact of her keeping it would have been added by showing that her conduct in maintaining the establishment was “to the encouragement of . . gaming.” If the indictment had contained the unnecessary allegation that the house was a red house, the State would have been obliged to prove that it was “ red,” or else fail to make out its case. This is so because proof of every other allegation in the indictment, without proof that the house was of the color charged, would have left it uncertain whether the house
There is another class of cases wherein a conviction may stand without literal proof of the charge as made. Thus, on an indictment for the larceny of ten' sheep, the accused may be properly found guilty upon proof satisfactorily showing that he stole one of those sheep; or, on an indictment for embezzling five hundred dollars, a conviction may stand on evidence showing the embezzlement of any number of those dollars. In cases of this kind the evidence establishes the commission of an act, covered by the charge in the indictment; the doing of which is a crime; and the evidence fixes this very act as one to which the indictment referred. Our present case, on principle, falls within the latter class. The criminal act was the keeping of a particular house in a disorderly manner. Both the house and the manner of keeping it were absolutely identified, and this is none the less true because one of the vicious tendencies of the manner of keeping was not shown. A second prosecution for the disorderly keeping of this same house during the' period covered by the present indictment would be barred; and this is the real test. As was remarked by Buller, J., arguendo, in J’Anson v. Stuart, 1 T. R. 754, “the offense is the keeping of the house.” The following from 7 Enc. PL & Pr. 17, seems to be closely in point: “ Under an indictment for keeping a disorderly house, which charges in the same count the various manners in
Judgment affirmed.
Dissenting Opinion
dissenting. While conceding that the General Assem-. bly may, without regard to the population of a particular city, es- - tablish a city court, I must dissent from so much of the judgment rendered in this case by my brethren as rules that the General As