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KINNEY v. THE STATE (two cases).
32823.
32824.
Maintaining ill-governed house; from Jackson Superior Court-- Judge Pratt. October 15, 1949.
TOWNSEND, J.
1. All persons aiding directly or indirectly in the maintenance of an ill-governed house are jointly and severally guilty of the offense.
2. A wife may he convicted of maintaining an ill-governed house, the evidence showing that she aided, directly or indirectly, in its maintenance, and also showing that her husband, the head of the house, was absent from home, the wife, therefore, not being under his direction and control.
The plaintiffs in error, herein referred to as the defendants, were jointly indicted in the Superior Court of Jackson County for the violation of Code 26-6103, which provides: "Any person who shall keep and maintain, either by himself or others, a common, ill-governed, and disorderly house, to the encouragement of idleness, gaming, drinking, or other misbehavior, or to the common disturbance of the neighborhood or orderly citizens, shall be guilty of a misdemeanor." They were separately tried and convicted. The jury was authorized by the evidence to find facts substantially as follows: that the house in question was the home of one Lee Kinney; that for some time prior to the institution of the prosecution the defendants, Kinney's wife and father respectively, lived in the house with him; that Lee Kinney was serving a sentence in a work camp in this State prior to and at the time the indictment was returned; that for several months prior to the indictment, but after Lee Kinney had commenced serving his sentence, large numbers of people, both white and colored, frequented the house; that there was much misconduct therein, resulting in the common disturbance of the neighborhood that each of the defendants was seen under the influence of liquor on numerous occasions, and that their conduct, which included drinking, fighting, cursing, and boisterousness, was such as to encourage drinking and other disturbing misbehavior in the house. The commotion that resulted therefrom seriously disturbed the neighborhood generally. To the judgments based upon the verdicts of guilty in each case the defendants filed their respective motions for new trials based on the general grounds only, and the judgments of the trial court overruling these motions are assigned as error.
(After stating the foregoing facts.) In Fanning v. State, 17 Ga. App. 316, 319 (86 S. E. 731), the court stated: "To sustain a charge of this character, it must appear first that the house was a common, ill-governed, and disorderly establishment, and further that the keeping and maintenance of it encouraged idleness, or gaming, or drinking, or other misbehavior; or else that the house was kept and maintained in such a manner as to cause common disturbance of the neighborhood or orderly citizens." The evidence was sufficient to sustain this charge.
In Brannan v. State, 43 Ga. App. 231 (158 S. E. 355), the defendant's claim that the tourist camp in question was owned by her husband and managed by his employees during his illness was held not to absolve her, since she lived on the premises and had a general supervision thereof during her husband's absence. In the instant case, the acts charged were committed at times during which the technical head of the house was not present, and therefore, if either or both of the defendants maintained a disorderly house or contributed to the maintenance thereof, such party would be responsible for the acts committed therein. In Ward v. State, 22 Ga. App. 786 (97 S. E. 198), it is held that, since all persons aiding directly or indirectly in the commission of a misdemeanor are guilty as principals, a person participating in improper conduct, although not the head of the house, was an accessory and guilty as a principal. Since it appears that the acts charged were committed by both defendants, and there is no evidence that either was coerced or deprived of freedom of movement by the other, the jury was authorized to find that each defendant aided and abetted the maintenance of a disorderly house, and that each was guilty as a principal. See also Kessler v. State, 119 Ga. 301 (46 S. E. 408); Clifton v. State, 53 Ga. 241.
Durham v. State, 49 Ga. App. 374 (175 S. E. 542), and other cases cited by council for the defendants, apply to relieve a wife of criminal liability only when she is living with her husband and is under his direction and control. They are therefore inapplicable in the present case.
The trial court did not err in overruling the motions for a new trial.
Judgments affirmed. MacIntyre, P. J., and Gardner, J., concur.
Hope D. Stark, Solicitor-General, contra.
George W. Westmoreland, for plaintiff in error.
DECIDED JANUARY 26, 1950.
Saturday May 23 06:05 EDT


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