10 S.E.2d 254 | Ga. Ct. App. | 1940
Lead Opinion
The special assignments of error are without merit, and the evidence supports the verdict.
The court did not err in admitting evidence of the general reputation of the defendant's place of business charged as being operated as a disorderly house as defined by the Code, § 26-6103, declaring that "any person who shall keep and maintain, either by himself or others, a common, ill-governed, and disorderly house, to the encouragement of idleness, gaming, drinking, or other misbehavior, or to the common disturbance of the neighborhood or orderly citizens, shall be guilty of a misdemeanor." Code §§ 26-6102, 26-6103, seeking to segregate the evils sought to be restrained, are kindred statutes, the former providing that "any person who shall maintain and keep a lewd house or place for the practice of fornication or adultery, either by himself or others, shall be guilty of a misdemeanor." Under a charge of maintaining a lewd house the general reputation of the house is admissible.Hogan v. State,
Judgment affirmed. Broyles, C. J., concurs.
Dissenting Opinion
The indictment charged that the defendant, "unlawfully and with force and arms, did keep and maintain by himself and others, a common, ill-governed and disorderly house, to the encouragement of idleness, gaming, drinking, and other misbehavior, and to the common disturbance of the neighborhood and orderly citizens." The question presented in this case is whether under such indictment proof that the house had a general reputation of being a common disorderly house was admissible. The State contends that evidence that the house was, and is, by reputation "a common disorderly house" was admissible, and relies on Heard v. State,
Speaking generally, a house of ill fame or a lewd house has been sometimes called a disorderly house, or vice versa. However, in our State, we have a statute making it an offense to maintain "a common disorderly house," as follows: "Any person who shall keep and maintain, either by himself or others, a common, ill-governed, and disorderly house, to the encouragement of idleness, gaming, drinking, or other misbehavior, or to the common disturbance of the neighborhood or orderly citizens, shall be guilty of a misdemeanor." Code, § 26-6103. Another statute makes it a different and distinct crime to "maintain and keep a lewd house," as follows: "Any person who shall maintain and keep a lewd house or place for the practice of fornication or adultery, either by himself or others, shall be guilty of a misdemeanor." § 26-6102. Where the defendant was found guilty under an indictment which charged in general terms the keeping of a common disorderly house under § 26-6103, proof that the house had a general reputation of being a common disorderly house was not admissible. To sustain the indictment, it is necessary to prove the particular facts which constitute the offense. 1 Wharton's Criminal Evidence, 486, § 260. Under an indictment for keeping a lewd house, which is drawn under § 26-6102, the keeping of a lewd house is the statutory term describing the offense, and the lewd reputation of the house may be put in evidence; for a lewd house is a house of ill fame or ill *907
reputation. Black's Law Dictionary, 202; 2 Bouvier's Law Dictionary, 1460; Cotton v. Atlanta,
In any criminal case for maintaining or keeping a house of ill fame, if the witness knows the reputation, that is, if he knows the house is reputed or accepted by the general public opinion as being one of ill repute (even though he does not know in reality it is such a house), he may nevertheless testify to this objective fact of ill reputation of the house, without giving any preliminary fact or facts upon which he based his conclusion as to its reputation. But where the indictment, as here, charges the maintaining of "a common disorderly house," not an ill reputed disorderly house, the indictment (the pleading) does not make an issue as to whether the house was one of ill reputation. The reputation of the house is not put in issue by the pleading (the indictment), and evidence of the reputation of the house is not admissible. The reputation of the disorderly house is not charged in the indictment as being, nor is it, essential or material on the question of whether the house was in reality, "a common disorderly house" as charged in the indictment, and such reputation would be secondary evidence of *908
disorder which is susceptible of immediate proof. Hence the particular acts of disorder are admissible as primary evidence from which the character of the house may be inferred, and also the bad conduct of those frequenting the house. In this regard the Maryland Court of Appeals, where the offense charged was keeping a disorderly house, said that "Evidence of the general reputation of the house was inadmissible, but the general reputation of those who frequented it was admissible for the purpose of characterizing the house and showing the object of their visit." Beard v. State,
I think that the court in this case, having allowed several witnesses to testify that the house in question had a general reputation of being a common disorderly house, and having charged the jury that they would have a right to consider it in connection with the other testimony in the case, committed reversible error. I think a new trial should be granted.
Addendum
Rehearing denied. Broyles, C. J., concurs. MacIntyre, J.,dissents.