Stevenson v. State , 83 Ga. 575 ( 1889 )

Bleckley, Chief Justice.

1. The charge of the court touching the effect of evidence as to the general character of the accused, tested by Shropshire v. The State, 81 Ga. 589, is not accurate, but under the evidence in this case, the deviation from accuracy is not sufficiently material to require or justify a reviewing court in ordering a new trial.

2. That part of the charge which would seem to imply that a single instance of gaming in the house would impress it with the character of a gaming-house, was given while the court was dealing with the question of control over the room, notwithstanding the accused had rented it out to other parties for certain purposes. The purpose of the court in this part of the charge was to instruct the jury that notwithstanding the room had been so rented, certain acts of control, including the allowance of gaming and the participation therein by the accused himself, would render him responsible as the keeper of the house, if he did keep it as a gaming-house or room. These instructions were substantially in accordance with the ruling of this court upon a like question in Scott v. The State, 29 Ga. 263, in which it was held that under an indictment for keeping a gaming-house, the defendant does not relieve himself by showing that he had rented out the house before the gaming was done, when it appears that the house was in his possession when the gaming occurred.

3. The evidence, we think, warranted the jury in arriving at a verdict of guilty, more especially as it affirmatively appears that several persons who were present apparently engaged in gaming when the police raided the establishment, were accessible as witnesses, and could have been introduced by the accused, if he had been willing to abide by their testimony. Even his clerk, who must have known whether the room was kept as a gaming-house or not, was not introduced. Had there been any reply to be made to the inculpatory evidence produced by the State, it was clearly in the power of the accused to answer that evidence ; and his failure to do so, notwithstanding his ample opportunity, could well be considered by the jury as adding strength and force to the prima facie case made out by the State. He introduced other witnesses who did not know the material facts, hut carefully avoided introducing those who did know them. “Where a party being apprised of the evidence to he adduced against him has the means of explanation or refutation in his power if the charge or claim against him he unfounded, and does not explain or refute that evidence, the strongest presumption arises that the charge is true or the claim well-founded. It would he contrary to all experience of human nature'and conduct to come to any other conclusion.” 1 Stark. Ev. 545.

The court did not err in refusing a new trial.

Judgment affirmed.