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Thornton v. Forehand

Supreme Court of Georgia
Jun 14, 1955
87 S.E.2d 865 (Ga. 1955)

Opinion

18958.

SUBMITTED MAY 9, 1955.

DECIDED JUNE 14, 1955.

Injunction. Before Judge Gray. Turner Superior Court. March 11, 1955.

R. D. Smith, for plaintiff in error.

W. J. Forehand, Solicitor-General, contra.


1. The information of a solicitor-general filed on the application of a citizen — to the effect that the defendant knowingly maintained and used a building for the purpose of gaming and had in the building a certain paper card, dice and other contents, which should also be declared to be a nuisance — were sufficient, as against the general and special grounds of the defendant's demurrer, to set forth a cause of action, to abate the place as a common nuisance.

2. While a single transaction might not be sufficient to authorize abatement of a place of business as a common nuisance, in that the law contemplates some continuity of violation, yet evidence as to one illegal gambling game, coupled with corroborative circumstances such as the general reputation of the place for gambling, is sufficient to authorize the abatement of a place of business as a common nuisance.

SUBMITTED MAY 9, 1955 — DECIDED JUNE 14, 1955.


W. J. Forehand, as solicitor-general, filed in Turner Superior Court, against W. E. Thornton and Grady Williams, a petition to abate, as a common nuisance, a restaurant known as Sibley's Place, which alleged substantially the following: The defendant Thornton knowingly maintains and uses the premises for the purpose of gaming. He has in the building a certain paper card, dice and other contents, which should also be declared to be a nuisance. The nuisance tends to the immediate annoyance of the citizens in general, and tends greatly to corrupt the morals and the people. The premises are owned by the defendant Williams, who permits the use thereof by the defendant Thornton.

To the petition the defendant Thornton interposed a demurrer on general and special grounds and also filed an answer. The trial court overruled the demurrer on each ground therein stated.

Upon the interlocutory hearing, Hugh Smith, a special agent with the Georgia Bureau of Investigation, testified in part: He knew the reputation of "Sibley's Place", insofar as gambling operations were concerned, and that the reputation was bad. On cross-examination, the witness testified that five named persons, from five States other than Georgia or Michigan, had complained of losing money there, and that numerous people within a radius of 50 miles in either direction had complained that the defendant was operating a gambling house.

Duane Gross, a citizen of Michigan, testified: On February 22, 1955, he and named persons stopped for dinner at Sibley's Place. When they paid for the meal, the person who received the money said that five dollars' worth entitled them to a free roll of the dice, and gave them a courtesy card, good for one free roll. Thereafter they were engaged in a dice game, in the course of which the witness lost $265. The person who accepted the money for the meal and who was in charge of the dice game seemed to be an employee of the place. He said that he was "using the boss's money," that he just worked there. Mr. Thornton was there when the game started, but the witness did not know where he was while the dice rolling was in progress. Inside the building, there was a counter with a bunch of fireworks on it, and tables where meals were served. It was one room with a little room in the back where meals were prepared. The game with the cards, dice, etc., was played right there where you go out the door.

T. C. Greer, the Sheriff of Tift County, testified: He stopped at a restaurant in Turner County, known as Sibley's Place, in the summer of 1954. While he was in the building he saw a slot machine. He did not recall whether it was a five-cent, ten-cent, or twenty-five cent machine. No one was playing it. He did not know Mr. Thornton and did not know whether the machine was in working order.

The defendant Thornton testified: He had never seen the witness, Duane Gross, before the trial. People stopped there, they traveled in convoys. He did not know anything about the incident testified to by Mr. Gross, and was not present when circumstances took place that the witness described. He operated a juice bar, a lunch counter, and sold much food and gifts. He did not maintain any gambling devices. No gambling has ever been in there or ever would be as long as he had it. The machine that Sheriff Greer testified about seeing was not in working order and had a sign on it saying, "This is a past relic." It had the back off and was completely open. You could see through it. He had never had any complaints from tourists.

At the conclusion of the hearing, the trial court granted an interlocutory order that the place be abated as a nuisance and temporarily enjoined the operation of any business therein. To this order the defendant Thornton excepted, also assigning error on the overruling of his demurrer to the petition.


1. Under the provisions of Code § 72-202, a public nuisance may be abated on information filed by the solicitor-general of the circuit on the application of any citizen specially injured. The allegations of the petition, that "W. J. Forehand, Solicitor-General of the Tifton Judicial Circuit of said State, and for and in the name of the State of Georgia and upon the information of Duane Gross," brings this action against the defendants, were not subject to demurrer of the defendant Thornton, on the ground that the petition failed to show that it was brought by the Solicitor-General of the Tifton Judicial Circuit "upon the complaint of any private citizen or any person directly or indirectly interested in the subject matter of such petition."

It was alleged in paragraph 2 of the petition that the defendant Thornton knowingly maintained and used the aforesaid building and premises for the purpose of gaming, and in paragraph 3 it was alleged that he had in the building a certain paper card, dice and other contents, which should also be declared to be a nuisance because of the facts stated in the preceding paragraph. The allegations in paragraph 2 of the petition were not subject to the demurrer of the defendant Thornton, on the ground that the allegations thereof failed to set out the nature of the alleged gambling that was being conducted in the defendant's place of business, by whom or with what device, and that the facts alleged were not sufficient to authorize the court to determine that the defendant was operating a place unlawfully.

The prayers of the petition seeking to abate, as a common nuisance, the premises and the contents therein, described in the petition, were not subject to the demurrer of the defendant Thornton, on the ground that the court was without jurisdiction to close the defendant's place of business except only such part thereof as the court might determine to be a public nuisance.

This court has held that the maintenance of a gaming-house or a gaming place is a public nuisance. Gullatt v. State of Georgia, 169 Ga. 538 (3) ( 150 S.E. 825). The allegations of the petition were sufficient, as against the general grounds of demurrer interposed by the defendant Thornton, to set forth a cause of action to abate, as a common nuisance, the restaurant known as Sibley's place.

2. On a criminal charge of operating a gaming house, evidence as to general reputation is admissible. Bashinski v. State, 122 Ga. 164 ( 50 S.E. 54). In the present case the evidence for the plaintiff showed one gambling game that occurred in a large room where meals were served, and that the general reputation of the place for gambling was bad. The defendant denied that there had been any gambling in his place of business. The undisputed testimony was that the restaurant business was conducted in a building that contained one large room where meals were served and a small kitchen in the rear. There was no evidence that any portion of the building was used for dwelling quarters.

While a single transaction might not be sufficient to authorize abatement of a place of business as a common nuisance, in that the law contemplates some continuity of violation, yet evidence as to one illegal gambling game, coupled with corroborative circumstances such as the general reputation of the place for gambling, is sufficient to authorize the abatement of a place of business as a common nuisance. Norris v. State of Georgia, 204 Ga. 441 (2) ( 50 S.E.2d 22).

Judgment affirmed. All the Justices concur.


Summaries of

Thornton v. Forehand

Supreme Court of Georgia
Jun 14, 1955
87 S.E.2d 865 (Ga. 1955)
Case details for

Thornton v. Forehand

Case Details

Full title:THORNTON v. FOREHAND, Solicitor-General, et al

Court:Supreme Court of Georgia

Date published: Jun 14, 1955

Citations

87 S.E.2d 865 (Ga. 1955)
87 S.E.2d 865

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