Martin v. State , 62 Ga. App. 902 ( 1940 )

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, 113 Ga. 444 (39 S.E. 118), as sustaining this position. As I construe that decision, it merely holds that the charge of conducting "a common disorderly house" could be proved by proof of any one, not necessarily all, of the prohibited acts. The judge in the instant case allowed, over objection, proof that the house in question had a general reputation of being a common disorderly house. The indictment was in two counts; the first count charging that the defendant did maintain and keep a lewd house and place for the practice of fornication and adultery; the second charging that the defendant did keep and maintain 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. After the close of the evidence, the State expressly abandoned the first count stating to the court that the second count would be relied on, that of keeping and maintaining a disorderly, ill-governed house. The judge expressly charged the jury that "the reputation of the place, as shown by the testimony, is a circumstance which the jury would have the right to consider in connection with the other testimony in the case, but standing alone it would not be sufficient to authorize a conviction in this case." I think the case was tried throughout by the court upon the theory that proof that the house had a general reputation of being a common disorderly house was admissible in evidence.

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 reputation. Black's Law Dictionary, 202; 2 Bouvier's Law Dictionary, 1460; Cotton v. Atlanta, 10 Ga. App. 397 (73 S.E. 683). The keeping of the house with such a reputation is the offense charged in the indictment, and is an issue made by the pleadings (the indictment) and the ill reputation of the house is necessarily an essential fact that must be proved. The ill reputation of the house, under our statute, is an objective fact itself, and the evidence that its reputation is that of a lewd house (a house of ill fame or ill reputation) is proper. The reputation of the house may be stated as an objective fact, without giving the various preliminary facts from which such reputation is inferred. The ill reputation of the house is, by statute and the indictment, made one of the essential elements of the crime charged, and the reputation becomes an evidentiary fact and is admissible like any other evidentiary fact. In a cow-stealing case, witnesses may testify that the animal stolen was a cow, as an objective fact. It is not necessary that the witness testify that it has four legs, two ears, etc., and state from these preliminary facts, or for these reasons that he inferred, or it is his conclusion, that the animal is a cow. The kind of animal stolen is alleged to be a cow, and the fact that the animal was a cow may be testified to by the witness as an objective fact.

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 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, 71 Md. 275 (17 A. 1044, 4 L.R.A. 675, 678, 17 Am. St. Rep. 536). Our Supreme Court, inMahalovitch v. State, 54 Ga. 217, said: "On the trial of an indictment for keeping ``a disorderly house,' it was not error in the judge to permit the State to prove by a policeman that he had gone to the house to arrest a criminal, and that the defendant, who was then keeping the house, secreted the person he was seeking in a closet. Such an act, standing alone, would not be sufficient upon which to base a conviction, but it might be one act, among others, going to show that the house was a disorderly one." See also Belasco v. Hannant, 3 B. S. 13-20, quoted inHeard v. State, 113 Ga. 444, 451 (39 S.E. 118). However, in the instant case proof that the house in question had a general reputation of being a common disorderly house was not admissible. Commonwealth v. Soo Hoo Doo, 41 Pa. Super. 249; Toney v. State, 60 Ala. 97; People v. Mauch, 24 How. (N. Y.) 276; Sparks v. State, 59 Ala. 82; Dixon v. Mayer, 186 Ill. App. 247; State v. Boardman, 64 Maine, 523; Shaffer v. State,87 Md. 124; State v. Bean, 21 Mo. 267; Heflin v. State, 20 N.J.L. 151.

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.