Malta Scarborough v. State , 46 Ga. 26 ( 1872 )

McCay, Judge.

Assuming what seems incontestible from the proof, that the house of the defendant was a place for the practice of fornication and adultery, we think it would be adding to the statute an element that it does not contain to say that to con-statute the offense, it must be shown that the house was kept for profit. This is not a common law offense, nor does its definition depend upon the common law definition of a lewd house. The Code defines the meaning: “ or house for the practice of fornication or adultery, by himself, herself or others.” Any one guilty of maintaining or keeping such a house is punishable under this section of the Code: section 4462. We do not see that the evil is any way increased or lessened by the additional fact that a profit is made of the business. The evil consists in the moral guilt of conniving at and encouraging such practices, and in the scandal and outrage upon the decency and virtue of the community; and if one keeps such a house merely for the gratification of his own vicious propensities, himself and his house are and ought tobe justas much a nuisance and a stench in the nostrils of a community as though it were for a profit.

Besides this, if it were necessary to show it was kept for profit, the difficulty of making the fact apparent, would almost produce an immunity for the crime. We think there was no error in the Judge’s charge on this point.

Nor can it make any difference that their practices were carried on by the wife and daughters of the defendant. The statute is by himself, herself or “others.” Indeed it would seem to aggravate the offense that the perpetrators are those over whom the defendant has the right of a husband or parent. We do not say that a parent or a husband is to be charged with every act of his wife or child. But it is only holding him to the performance of an ordinary duty of a good citizen to say that he is responsible if he suffers them to make his house notorious for open lewdness — a resort for the vicious, where they may with impunity, so far as he is concerned, practice fornication and adultery.

The proof contained in this record shows that he did not interfere — that with a full opportunity to know what was going on, he kept still. He did not, it is true, take any active part. But his was the house — he was master therein, and his presence and want of dissent is sufficient. It may be that he was a mere tool in the hands of others. If so, that should have been proven. ■ All this was for the jury, and it was fairly left to them. Indeed, this is true of the character of the house, the position of Scarborough in reference to his wife, his power over them, his assent or dissent, etc. Prima facie the owner of a house, the husband and father of the inmates, is the head of the family, and can control what is done there. If he permits it, with his knowledge, to be degraded into a brothel and nuisance, •prima facie the law holds him responsible, no matter who are the actors. If he be an imbecile — a mere tool — that unnatural thing who can be made by a vicious wife and daughters submit to his own dishonor and to the degradation of his family — he ought to be held to proof of it. The act is so unnatural, so debasing and disgraceful, that the proof of his want of manhood ought to be strong. We think the jury was right. This Avas a bad house — a nuisance — a disgrace to all concerned in it, and a violation of the law.

It would be impossible to carry on a trial if this section of the Code, prohibiting a Judge from expressing any opinion as to Avhat is proven, is to be construed as is contended for. A Judge, in deciding as to admissibility of testimony, must always, to some extent, decide as to its weight, since often its admissibility depends on that, so he must often determine what has been proven so as to say whether certain other things may be proven. To decide a non-suit, he must decide if there be enough proven to justify a verdict, etc.

The only practicable rule is, to treat the jury as possessed of common sense, and as ¿apableof understanding what is addressed by the Judge to them and what is not. He may not express to the jury any opinion ; but if in the decision of any legal question, as it arises, he must pass upon facts, the statute does not apply. It must be reasonably construed. In this view of the law, we see no error in the remark of the Judge. He only said to the counsel what was his view of the law, and this he had a right to do.

We are not in the habit of scanning with great nicety the mode in Avhieh a Judge permits a case to be presented to the jury. We do not say he may not be so lax in his rules as tobe guilty of error; but we are satisfied that a reviewing Courtis not in a position to be a very proper judge of this thing. It is improper to permit statements to be made that are notin proof, and the Judge ought not, even with the consent of both parties, to allow it, unless it be as proof. But it seems here to have been at first consented to • one of the counsel said, “Let him go on.” When appealed to, the Court stopped it.

The complaint is that the Judge did not tell the jury not to notice these statements. It seems to me that this is an after-thought. Had there been any fear of its effect on the jury, it would have been easy to ask the Court to instruct the jury as to their duty in this respect. But it is giving a very humble part to the jury on a trial to suppose them capable of giving weight to statements of this character. We think the statements ought not to have been allowed by the Judge, but in so strong a case as this, we do not think there ought for this reason to be a new trial.

Judgment affirmed.