Kessler v. State

46 S.E. 408, 119 Ga. 301, 1904 Ga. LEXIS 813

• Court: Supreme Court of Georgia
• Decided: January 12, 1904
• Status: Published

Opinion

Cobb, J.

If the owner of a house leased it to another for the purpose of keeping a lewd house, or if he leased it with the knowledge chat it was to be so kept, he was guilty of a misdemeanor at common law. 9 Am. & Eng. Enc. L. (2d ed.) 527; 5 Id. (1st ed.) 699 ; 2 Clark & Mar. Crimes, 1125; 2 Bish. Crim. Proc. §119; Hughes’ Cr„ L. & Proc. §2099; 2 Whart. Or. L. (10th ed.) § 1459. Penal Code, §391, which declares that “if any person shall maintain and keep a lewd house, or place for the practice of fornication or adultery, either by himself or others, he shall be guilty of a misdemeanor,” is but a codification of the common law. To sustain an indictment under the section just quoted, it is necessary to show only that the accused contributed to or aided, directly or indirectly, in maintaining and keeping a lewd house. Clifton v. State, 53 Ga. 241. One placing another in possession of í house for the purpose of being used for lewd purposes, or giving possession with knowledge that it is to be so used, directly aids him who is thus placed in possession, in the unlawful enterprise by him therein carried on, and is liable to indictment as the keeper of a lewd house, under the provisions of the' Penal Code, § 391. As the offense is a misdemeanor, all persons'aiding, directly or indirectly, in its perpetration are indictable as principals; and it is upon this principle of the common law that the numerous authorities holding that the owner or controller of the house is indictable as keeper and maintainer are based. The charges complained of were in accord with the principles above laid down, and were therefore not erroneous.

Judgment affirmed.

All the Justices concur.