Bell v. State

18 S.E. 186, 92 Ga. 49

• Court: Supreme Court of Georgia
• Decided: April 10, 1893
• Status: Published

Opinion

Bleckley, Chief Justice.

1. "While a single act or instance of gaming in a house or room will not constitute the place a gaming-house or room, yet such an act together with all the attendant circumstances and surrounding indications maybe sufficient evidence to show that the house or room is really one of that character. In this case the indictment was as broad as section 4538 of the code. It charged not only that the accused kept a gaming-house and room, but that she knowingly permitted persons to come together and play and bet for money at the enumerated games and other games played with cards, in a house and room occupied by her. On such an indictment the question embraced in the request to charge as to a single instance was immaterial, and for this reason the court was not bound to comply with the request.

2. Section 4300 of the code is in these words: “A feme covert, or married woman, acting under the threats, command or coercion of her husband, shall not be found guilty of any crime or misdemeanor not punishable by death or perpetual imprisonment; and,with this exception, the husband shall be prosecuted as principal, and, if convicted, shall receive the punishment which would otherwise have been inflicted on the wife, if she had been found guilty; provided, it appears, from all the facts and circumstances of the case, that violent threats, command and coercion were used.” "Whatever may have been the common law on the subject, it is evident from this language that, as to any offence, however small, in order for the wife to stand excused under the code, on the ground of the presence of her husband, it must appear that she was in fact coerced, or that he used violent threats, command or some equivalent means of coercion calculated to overpower her will and render her a passive instrument rather than a voluntary agent of crime.

3. If the accused, Hattie Bell, and Harry Dillard were husband and wife and resided together in the house where the gaming took place, no matter which of them owned or had rented the house, he was the head of the family. It appeared that both were present when the gaming was being carried on. If so, it was his duty, not hers, to prevent it. To hold her liable criminally for permitting it while he was present, it should appear affirmatively that she was active in granting permission. If she was merely passive in the matter, although she took no measures to hinder or prevent the game, she could not be convicted. The evidence discloses nothing but passive acquiescence on her part. By whose means the gamesters were brought together, or by whose permission they engaged in and carried on the game, does not appear.

4. The only evidence of marriage was that of three witnesses who testified that they had heard that Hattie Bell and Harry Dillard were married, and that they knew they were living together at this house as man and wife. "We should be inclined to doubt whether this evidence would be sufficient to establish the marriage, but in charging the jury the court appears to have treated the accused as a married woman, and in the argument here the counsel for the State acquiesced in that view. Under these circumstances we do not feel it incumbent upon us to decide upon the effect of the evidence as to the proof of marriage. Taking it for granted that Harry Dillard was the husband of the accused, the verdict was without sufficient evidence to justify it, and the court erred in not granting a new trial. Judgment reversed.