23 Ga. App. 727 | Ga. Ct. App. | 1919
Lead Opinion
“To authorize conviction in a prosecution for the offense of keeping a lewd house, it is not enough to prove the general reputation of the house, or of its inmates, or both; for the gist of the offense is that the house was kept Tor the practice of fornication or adultery;’ and the jury must be satisfied that acts of lewdness were practiced in the house, and that it was maintained for the purpose of prostitution: Reputation' for lewdness, however, may be a circumstance tending to show the character of the house, and may be considered by the jury in corroboration of such facts and circumstances as may reasonably satisfy them of the essential fact that fornication or adultery was actually committed therein.’’ Smith v. State, 13 Ga. App. 241 (2) (79 S. E. 51). The above is a correct statement of the law applicable to cases of this kind. In the case under consideration the evidence
The case of Ward v. State, 14 Ga. App. 110 (80 S. E. 295), sustains this view. The evidence adduced upon the trial there was held insufficient to authorize a conviction of maintaining a lewd house. Judge Russell in the opinion in that case said: “It appears from the record that the defendant lives with her daughter in the outskirts of the City of Rome, and that the house she occupies has the general reputation of being a lewd house. According to the testimony her daughter, though quite young, has the general reputation of being a lewd woman. The defendant’s son and one John Fowler also live at the house, which the defendant states she purchased with her own labor. There is no direct evidence that any act of adultery was committed in the house, nor any circumstance indicating that such an act was committed there, unless it can be assumed that Fowler was capable of, and, having had the opportunity by reason of his propinquity, was guilty of, the sexual act, with either the mother or the daughter. There
“We do not think the evidence in the present case was sufficient to authorize the conviction of the defendant. There is no circumstance which, to the exclusion of every other reasonable supposition, could satisfy the jury that the house was used for the practice of fornication or adultery. Even if it had been proved that a single act of immorality such as referred to above was committed, this alone would not have been sufficient to show that the house was kept or maintained for that purpose; though had there been such proof, we think the circumstances and the reputation of the defendant’s daughter, and of the house, might have supplied sufficient corroboration to sustain the charge, by authorizing the in-' ference that what was done was, in all human probability, repeated. The incriminatory proof in this case is confined to the matter of reputation, and, as was held in Coleman v. State, 5 Ga. App. 166 (63 S. E. 344), and in Smith v. State, supra, this alone is insufficient to authorize conviction. There was evidence that men were seen to go to this house by day and by night, and that there was some boisterousness and other noise likely to disturb the neighborhood. This might have authorized a conviction of the statutory offense of keeping a disorderly and. ill-governed house (Pena: Code, § 383), because the defendant admitted that it was her house and in her charge; but the mere fact that men went to the house and came away under the influence of liquor, and during their' stay were noisy and boisterous, would as reasonably suggest the
“Evidence of the general character of the inmates of the house is. merely corroboratory evidence, and - is of itself insufficient to authorize conviction. The point can well be illustrated by the case of numerous reformatory institutions which a progressive and most commendable philantropy is attempting to maintain. A case can be conceived of where all of the immates except the matron might be girls or women whose reputation for chastity was bad; and in the work of reformation it might be economical, convenient, or otherwise desirable to use a house which had not borne a good reputation. If the rule were as contended on the part of the State in the present ease, those at the head of each of these institutions could very promptly be convicted of keeping a lewd house on proof of the general reputation of the inmates.’.’
The facts in the Fitzgerald ease, 10 Ga. App. 71 (72 S. E. 541), and in the Basil case, 22 Ga. App. 765 (95 S. E. 25.9), are entirely different from the facts in the case now under consideration. In each of these cases the evidence shows that the house in question was a city hotel of a bad reputation, infested with numerous notoriously lewd women, who made dates with men to meet them 'there, and occupied rooms there and slept there with men who were not their husbands. Such evidence, of course, authorized a conviction of maintaining a lewd house, as was held in both of those cases. It not only authorized but even demanded the inference that acts of fornication and adultery were, practiced there. In the Coleman case, supra, the question of whether the evidence was sufficient to support the verdict was not decided.. Judgment in that case was‘reversed on an erroneous charge of the court. It was there held to be error to instruct the jury that “it would be sufficient if the State proves to your reasonable satisfaction that she bears the general reputation of being a lewd woman, and that the house or place kept by her iiears the general reputation qf 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.”
In our opinion the evidence was wholly insufficient to authorize the verdict, and the court erred in overruling the motion for a new trial.
Judgment reversed.
Concurrence Opinion
I agree that under the particular facts of this case the conviction of the defendant was unauthorized. I do not, however, concur in all that is said in the opinion of the majority of the court.