Fitzgerald v. State
| Decision Date | 07 November 1911 |
| Docket Number | 3,687. |
| Citation | 72 S.E. 541,10 Ga.App. 70 |
| Parties | FITZGERALD v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A house may be a "lewd house," within the purview of section 382 of the Penal Code of 1910, which makes it criminal for any person to maintain a lewd house or place for the practice of fornication and adultery, though the house may be devoted chiefly to the carrying on of some other vocation (a boarding house or hotel, for example), if lewd women are accustomed to frequent there and to carry on their practices.
In order to convict an innkeeper of maintaining a lewd house, on the theory that, along with other guests, he allows lewd women to stop at his inn and ply their vocation, it is necessary to show that the innkeeper had knowledge, actual or implied, of the unlawful practices that were going on. Such knowledge may be shown directly or circumstantially, and where the accused himself was in personal charge of the inn one of the methods by which he may be charged with this knowledge is to show that his house had acquired a general reputation in the community of being a place in which fornication and adultery were commonly practiced; the sufficiency of such testimony being for the jury.
It is no ground for the exclusion of the testimony of one who swears that he knows the general reputation of a house, or of a person, as to lewdness, that he cannot tell the number of persons whom he has heard speak of the matter, or give the names of those from whose conversation he has gained his knowledge of the general reputation as to which he testifies. His examination and cross-examination go to the jury together, to be given such weight as it seems to them to be entitled to under all the circumstances disclosed by his testimony as a whole.
"The hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." Words may constitute conduct, and, when that conduct is otherwise relevant in the case, the fact that the person used these words may be proved, notwithstanding the ordinary rule against the admission of hearsay.
It is not necessary, in order to make out the offense specified in Penal Code 1910, § 382, that the state should show any particular act of fornication or adultery to have been committed, if the evidence, either directly or circumstantially, is such as to satisfy the jury that the house was kept and maintained as a lewd house; that is, if notwithstanding lack of proof as to any particular act, the circumstances are such as to satisfy the jury that the practice of fornication and adultery actually went on in the house.
(Additional Syllabus by Editorial Staff.)
"General reputation" is what people in a community commonly say about a thing.
Error from City Court of Valdosta; J. G. Cranford, Judge.
J. Z. Fitzgerald was convicted of maintaining a lewd house, and brings error. Affirmed.
Whitaker & Dukes and E. K. Wilcox, for plaintiff in error.
Jas. M. Johnson, Sol., for the State.
The defendant was indicted for violating section 382 of the Penal Code of 1910, which makes it a misdemeanor for any person "to maintain and keep a lewd house or place for the practice of fornication or adultery, either by himself or others." The state relied on what is the usual method of proof in such cases, namely, proof by witnesses that the house in question had a general reputation of being a lewd house, and that certain women who lodged there from time to time had a general reputation of being lewd women, supplemented by proof of certain specific acts of conduct which took place from time to time, and which were indicative of the fact that fornication was probably going on in the house. Only one act of sexual intercourse was directly proved, and it was not shown that the defendant personally knew of this act. The house in question was operated by the accused as a restaurant and lodging house, or a cheaper form of hotel. The proof showed that some good people lodged there from time to time, and that some lewd women stayed there at periods of greater or less duration. The defendant and his son personally conducted the house and looked after the comfort of the the guests.
One of the points stressed in the argument raises the question as to whether a house devoted chiefly to other purposes may also be a lewd house, within the purview of the statute. It is insisted that merely for an innkeeper to furnish lodging to guests of a lewd character, who, with his knowledge or by his connivance practice fornication in the house during their stay there, more or less transient, does not render the proprietor indictable for maintaining a house for the practice of fornication. We think that a house may be a lewd house, within the purview of the statute, although it is devoted also to other purposes; and if an innkeeper furnishes lodging to lewd guests, and allows them, with his knowledge or acquiescence, to carry on their unlawful practices in his house, he is guilty of violating the statute, notwithstanding the greater portion of his guests may be decent people, and notwithstanding the greater portion of the business carried on in the house may be of a legitimate nature.
2. In order to convict the proprietor of a lodging house of maintaining it as a lewd house, it is necessary to show directly or circumstantially, that he knew of the lewd practices which were going on therein, or, if he did not positively know it, that he was in possession of such facts as to charge him with what is commonly known as "constructive knowledge." He cannot shut his eyes to what was going on around him, for the purpose of avoiding knowledge, and then defend on the ground of his lack of knowledge. The plaintiff in error contends that the evidence was insufficient to charge him with knowledge in the present case; no actual knowledge being directly shown. After carefully reading the record, we cannot sustain this contention. In the first place, it is shown that the house had achieved a general reputation in the community of being a lewd house, and that the accused himself personally conducted the place. This alone would be sufficient to authorize the jury to believe that he had such knowledge of the situation as to charge him with culpability. The most common method of making out a prima facie case against a person for maintaining a house of this kind is to show that the house bears such a general reputation in the community, and that the accused, being the proprietor, was a member of the community. Proof of this kind alone has been held sufficient to convict, doubtless on the theory that a person living in a community would hardly be ignorant of a condition which relates to his own affairs and which has...
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