Bashinski v. State , 122 Ga. 164 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) One charged with a crime can not be convicted on suspicion, or by general reputation, or by .proof that he is in the habit of committing offenses similar to that for which he is being tried. Hence, evidence of distinct transactions within or without the statute of limitations is inadmissible. Civil Code, § 5159; Erwin v. State, 121 Ga. 580. But where guilty knowledge is the gist of the offense, anything going to show the existence of such knowledge is admissible. If the mental state was operative within the statute of limitations when the defendant did the prohibited act, it makes no difference what was the date or the source of his knowledge. If he had long known that the seclusion and the means of access adapted the apartment for gaming purposes, or that it had acquired a reputation as a gaming-room, or if the tenant had long been known as a gambler, these facts could be considered by the jury as well as if the defendant had acquired such knowledge on the date the contract of rental was made. They were for consideration, not for the purpose of convicting him of an offense barred by the statute of limitations, nor of showing that because he once rented for an illegal purpose he would do so again, but to illustrate the question as to whether, when he rented within the two years, he knew, by reason of what had gone before, that the room was to be used as a place for playing and betting. In the nature of things the State can not prove that such knowledge is positive or absolute. If the circumstances were sufficient to satisfy a man of ordinary intelligence and caution, or to give him good reason to expect, that the room would be put to the illegal use, the requirement of the statute would be met. Penal Code, §398. Where the known occupation of the tenant and the established reputation of the room coincided as here, the jury would have stultified themselves had they found any other verdict than that rendered. Rivers v. State, 118 Ga. 42. None of the assignments of error complained of matters which would have vitiated the trial. If there was any inaccuracy or incompleteness in the charge as to who was the judge of the law, the same was harmless. The verdict was demanded. The judgment refusing a new trial is,

Affirmed.

All the Justices concur.