10 Ga. App. 133 | Ga. Ct. App. | 1911
Kinard was indicted under section 382 of the Penal Code (1910), which provides: “If any person shall maintain and keep a lewd house, or place for the practice of fornication or adultery, either by himself or others, he shall be guilty of a misdemeanor.” In this State, where no difference between actual principals and those sustaining accessorial relations is made, any one who in any wise aids or abets or assists in keeping or maintain
But this charge and the exception to it bring squarely before us the question: Where one makes an executory sale of property to another for the purpose of the latter’s keeping a lewd house there, and the latter in fact keeps the lewd house there, does he commit such an act of aiding or abetting or maintaining as to be held accountable under the statute? It is readily conceded by the able counsel for the defendant that one who rents a house with intention that it shall be used for lewd purposes, or with a knowledge that it will be used for those purposes, may be indicted under this statute. They assert that there is a distinction between one who lets out property for this illegal purpose and one who makes a sale of it. We need not discuss what would be the effect of making an absolute sale, for here the defendant made merely an .executory sale, by which he turned over to the lewd woman the possession of the property (together with certain equitable rights which need not now be mentioned), reserving the legal title in himself. There is a Kentucky case which gives color to the contention that
A person having possession of a house which a lewd woman desires for the purpose of carrying on her practices therein is under the active duty of not renting it to her if he knows that purpose. The law says that he owes that much to society. As to contracts of tenancy this is well settled. But it must be kept in mind that ,it is not the civil contractual status of the parties that is the important thing in fixing the culpability. It is the landowner’s conduct in giving over the possession of the house, to the lewd woman, with knowledge of the purpose to which it is to be devoted, that makes him a partner in her crime. In Kessler v. State, 119 Ga. 301 (46 S. E. 408), where the lewd woman was a tenant of the-accused, the Supreme Court, speaking through Mr. Justice Cobb, in affirming the judgment of conviction, said: “One placing another in possession of a house for the purpose of being used for lewd purposes, or giving possession with knowledge that it is to be so used, directly aids him who is thus placed in possession in the unlawful enterprise by him therein carried on, and is liable to indictment as the keeper of a lewd house.” Now possession is just as effectively given under an executory contract of sale as it is under a contract of tenancy. In all such cases the question of legal title or of equitable title has no importance or bearing. It was so held
It is to be noticed, further, that the instruction complained of did not make mere knowledge that the property might be used for lewd purposes the test of culpability. The instruction was that the defendant would be guilty if he sold or let the property “for the-purpose” that a lewd house might be maintained. We can not pronounce this charge erroneous.
There are other assignments of error, but none of them are meritorious or of sufficient importance to justify a reversal.
Judgment affirmed.