Palfus v. State , 36 Ga. 280 ( 1867 )

Harris, J.

I. A new trial should have been awarded by the Superior Court. Carefully analysing the testimony to ascertain its probative force, we think that it is very far from establishing the fact alleged, that defendant “ did keep and maintain 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.” There is not a particle of testimony which classes the house of defendant as an inn, a gaming house, or drinking saloon, or ten-pin alley, or as a house or place where the idle or dissipated, or riotous and lawless collect or frequent; nor does it appear to be a place or house kept for any purpose injurious to health or morals. A part of the house was occupied by defendant with his tailoring business (he being a tailor by occupation), a room or two by negro women, some of whom were employed by him as seamstresses, another room up-stairs was occupied as a law office and sleeping room by Henry Morgan, Esq., and underneath the rooms of defendant was a store room where business was regularly transacted. These facts considered make the charge of keeping a common ill-governed and disorderly house difficult to prove. It certainly in this case could be maintained only by clear proof of the cursing and swearing, and loud and frequent noise, to have been in the rooms of defendant under his control; and then that they were common and usual, and were to the common or general disturbance of the neighborhood or orderly citizens.

Does the testimony establish either the one or the other ? Can the cursing and swearing and noise on two, three, or four occasions complete and fill the idea of the law as expressed by the word common ? What noises are proven specifically but the fiddling of a clerk several times in the rooms of defendant, and that of negroes going over the stairway, which was under the control oí Mr. Morgan, not of defendant? And this is the substance of the testimony upon which defendant was convicted.

2. We apprehend that the Legislature in enacting this clause of the Code for the preservation of order and tranquility, designed to act upon criminally — only such houses wherein loud noises, cursing, swearing, <&c., were ordinary and usual, or common occurrences; not casual and at long intervals, but were the general, customary, common habits (if we use such an expression ’for illustration) of the house. These characteristics seem to us essential to fix upon a disorderly house the name of common.

So, too, the noise or disorder must not disturb one person only in a thick or populous neighborhood; it must disturb it generally, or it cannot be said of it to have been to the common. disturbance of the neighborhood or orderly citizens. The testimony here shows but one person living in the immediate neighborhood to have been disturbed, whilst several witnesses occupying the same house with defendant, and others an adjacent house, being there the whole time deny that there was at any time in defendant’s house such noise and disorder as was charged.

3. The finding of the jury in the County-Court, we presume, must have been the result of a misconception of the hind of house the Legislature meant to regulate, as also of the amount and hind of testimony necessary to constitute the offence. It may be that the jury did not give due weight to the testimony on the part of defendant, from the impression, probably, that it was altogether negative in its character. It appears to us to be distinctly affirmative of the facts testified to, of the rooms of defendant being quiet and orderly during the time spoken of, and thus becomes important proof to rebut the idea of usual, general, common disorder in them.

Let the judgment be reversed.