Opinion
36004.
DECIDED JANUARY 11, 1956.
Maintaining lewd house. Before Judge McGehee. Upson Superior Court. October 14, 1955.
R. L. Addleton, Leward Hightower, for plaintiff in error.
Andrew J. Whalen, Jr., Solicitor-General, contra.
1. "It is not necessary for the judge in charging a jury in a criminal case to make introductory remarks as to the importance of the case both to the State and the accused, but it is not error requiring a new trial for him to do so, provided what is said is not a misstatement of the law or calculated to prejudice the minds of the jurors against the accused." Vanderford v. State, 126 Ga. 753 (4) ( 55 S.E. 1025); Lane State, 140 Ga. 222 (1) ( 78 S.E. 837). See also Lyles v. State, 130 Ga. 294 (5) ( 60 S.E. 578). The trial court may, after the jury have had a case under consideration for some time, inquire how they stand numerically. Flahive v. State, 10 Ga. App. 401 (2) ( 73 S.E. 536). Accordingly, it was not error here, after the jury had been out for some time, to inquire on two occasions how they stood numerically, and on one such occasion to state, "This is a case that is important to everybody, just like every other case is when people are involved in criminal trials." The first special ground of the amended motion for a new trial is without merit.
2. Mere proof of the bad reputation of a house or its inmates for lewdness will not by itself sustain a conviction of maintaining a lewd house. There must be testimony that adultery or fornication were actually committed therein with the knowledge and approval of the defendant in control thereof. The testimony here was sufficient to authorize a finding that the practice of fornication and adultery actually went on in the house and that the defendant knowingly shared in the proceeds thereof.
DECIDED JANUARY 11, 1956.
The evidence for the State was substantially as follows, on the trial of the defendant for maintaining a lewd house: acting on information given by Buck Porter, former operator of the establishment in question and whose wife was at the time staying there with the defendant Frazier, the Sheriff and Deputy Sheriff of Upson County went to the place of business, which consisted of rooms in the back of the building and a store in the front in which beer, soft drinks and comestibles were sold; that the defendant and Mrs. Porter were present; that the next room was locked and the defendant refused to allow the sheriff to enter without a search warrant; that the sheriff sent his deputy to obtain a warrant; that a woman named Inez McCullough came out of the room and the defendant then allowed the sheriff to enter; that on the first search he found nothing, being interrupted by sounds of a fight outside between the defendant and Porter; that on return to the room he found a man concealed under some bedcovering on a bed. This witness testified that he was a truck driver who had stopped to purchase a soft drink; that after 5 or 10 minutes Inez McCullough approached him and asked him if he wanted a date; that she coaxed him into one of the back bedrooms and was in the process of unbuttoning her dress when a commotion arose outside and she instructed him to hide under the bed, which he did; that nothing was said about paying any money. There was testimony as to the reputation of the establishment as a lewd house and as to the bad reputation of Inez McCullough. Porter further testified that the establishment had been padlocked during the time he ran it and it was reopened by Frazier; that his wife was living with Frazier, and that on several occasions he had seen Inez McCullough take men in the back room and that when she came out she would give money to the defendant.
Upon conviction, the defendant made a motion for a new trial on the general grounds which was later amended by the addition of one special ground. The denial of this motion is assigned as error.
1. Headnote 1 needs no elaboration.
2. A house may be a "lewd house" although it is chiefly devoted to the carrying on of some other trade. Smith v. State, 52 Ga. App. 88 (6) ( 182 S.E. 816). In a prosecution for keeping a lewd house, evidence of the general reputation of the establishment and its inmates for lewdness is admissible, but it, without more, is insufficient to support a conviction. Ward v. State, 14 Ga. App. 110 (1) ( 80 S.E. 295). In Linebarker v. State, 74 Ga. App. 262 ( 39 S.E.2d 730) it is stated: "A person can not be legally convicted of maintaining a lewd house unless the proof shows that the general reputation of the house or its inmates, or both, was that it was a lewd house, and also that fornication or adultery was actually committed in the house." It is not, however, necessary that the State should show any particular act of fornication or adultery, 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 and that, 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." Fitzgerald v. State, 10 Ga. App. 70 (5) ( 72 S.E. 541). See also Wilkes v. State, 23 Ga. App. 727 ( 99 S.E. 390). To convict the owner of the establishment it is of course also necessary to show knowledge, actual or implied, on the part of the person charged. Bolden v. State, 88 Ga. App. 871 (3) ( 78 S.E.2d 368).
The bad reputation of the house and the woman staying there was established. The State further established by direct evidence that this woman proposed to go into a back room with the State's witness to "have a date" and was taking off her clothes for that purpose, but was prevented by the arrival of the sheriff. No particular act of fornication or adultery on the premises was shown, but a witness testified that he had frequently, at least more than 4 times, seen the same woman who it was established took a man into the bedroom for this purpose without accomplishing it, on other occasions take men into the back room for some purpose and, on returning, hand the defendant money. The witness could not and did not testify that any particular act of fornication or adultery took place on any of these occasions, and proof of the necessary fact that fornication and adultery were actually committed in the house must therefore depend on circumstantial evidence. We think the known intent in the one instance, coupled with evidence of numerous other transactions so completed that money changed hands as a result, were sufficient, in connection with all the other evidence in the case to authorize a finding by the jury that Inez McCullough entertained other men in the rear of the establishment in the same manner in which she intended to entertain the witness, and that the transfer of money immediately after these occasions authorized a conclusion that they were carried out. The evidence being sufficient to establish that acts of fornication or adultery were carried on, the acceptance of money by the defendant on each occasion immediately after the woman returned is sufficient to show his knowledge thereof, taken in connection with the other testimony in the case. Accordingly, the general grounds of the motion for a new trial are without merit.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.