A person who keeps and maintains, either by himself or others, a common, ill-governed, and disorderly house, to the encouragement of gaming, drinking, or other misbehavior, or to the common disturbance of the neighborhood or orderly citizens, is guilty of a misdemeanor.
(Laws 1833, Cobb's 1851 Digest, p. 815; Code 1863, § 4422; Ga. L. 1865-66, p. 233, § 2; Code 1868, § 4463; Code 1873, § 4537; Code 1882, § 4537; Penal Code 1895, § 392; Penal Code 1910, § 383; Code 1933, § 26-6103; Code 1933, § 26-2614, enacted by Ga. L. 1968, p. 1249, § 1.)
Cross references.- Right of civil action for public nuisance generally, § 41-1-3.
JUDICIAL DECISIONS
Constitutionality.
- So far as O.C.G.A. § 16-11-44 proscribes the maintenance of a house to the encouragement of gambling on a general, customary, or habitual basis, one of ordinary intelligence is given fair notice of what conduct is prohibited and arbitrary, and erratic arrests and convictions are not encouraged. The same view of the statute applies to its proscription of the maintenance of a "drinking" house, and it will not be struck down as facially unconstitutional where there are a substantial number of situations to which it may constitutionally be applied, despite the phrase "other misbehavior." Hubbard v. State, 256 Ga. 637, 352 S.E.2d 383 (1987).
Disorderly house defined.
- Disorderly house is a house in which people abide or to which people resort to the disturbance of the neighborhood or for purposes which are injurious to public morals, health, convenience, or safety. Fanning v. State, 17 Ga. App. 316, 86 S.E. 731 (1915); Martin v. State, 62 Ga. App. 902, 10 S.E.2d 254 (1940).
Section refers to general, customary, common habits of a house.
- Noise must qualify as loud noises, cursing, swearing, etc., that are ordinary and usual, or common occurrences; not casual and at long intervals, but rather the general, customary, common habits of the house. Brewer v. State, 129 Ga. App. 118, 199 S.E.2d 109 (1973), overruled on other grounds, State v. Folk, 238 Ga. App. 206, 521 S.E.2d 194 (1999).
Noises and misbehavior must be ordinary and usual or common, and disturbance must be general.
- To constitute a disorderly house, noises, etc., must be ordinary and usual, or common, and disturbance must be general, and not of only one person in a thickly settled neighborhood. Heard v. State, 113 Ga. 444, 39 S.E. 118 (1901).
Noise must exist for sufficient length of time to render it "common"; and noises made and improper acts committed therein must disturb peace and comfort of quite a number of orderly citizens in neighborhood. Brewer v. State, 129 Ga. App. 118, 199 S.E.2d 109 (1973), overruled on other grounds, State v. Folk, 238 Ga. App. 206, 521 S.E.2d 194 (1999).
Defendants must be occupants of or must maintain house in question.
- In order for defendants to be charged for this offense, they must be occupants of the house or keep and maintain the house in some manner. Being visitors only is not sufficient. Brewer v. State, 129 Ga. App. 118, 199 S.E.2d 109 (1973), overruled on other grounds, State v. Folk, 238 Ga. App. 206, 521 S.E.2d 194 (1999).
Playing stereo so as to disturb one person for less than an hour.
- When only person shown to be disturbed by defendant's stereo was complainant, who informed officer that noise had been maintained for a period of less than one hour, circumstances are insufficient to warrant arrest. Clare v. State, 135 Ga. App. 281, 217 S.E.2d 638 (1975).
Disorderly house may be gaming house, tippling shop, or bawdy house. Martin v. State, 62 Ga. App. 902, 10 S.E.2d 254 (1940).
Accusation against maintaining a disorderly house may include acts of lewdness as one of the other acts of misbehavior as stated in former Code 1933, § 26-6103 (see now O.C.G.A. § 16-11-44), and should acts of lewdness alone be relied upon for conviction, acts which constitute encouragement of lewdness must be openly and notoriously carried on, at least to extent of disturbing others. Cason v. State, 60 Ga. App. 626, 4 S.E.2d 713 (1939).
Repeated acts of fornication and adultery committed with defendant's knowledge and approval as establishing violation. Birdwell v. State, 112 Ga. App. 836, 146 S.E.2d 374 (1965).
Possession of prohibited liquors without revenue stamps.
- To maintain a disorderly house requires more than control and possession of intoxicating and prohibited liquors on which revenue stamps have not been affixed. McBrayer v. State, 79 Ga. App. 132, 53 S.E.2d 216 (1949).
Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276, 401 S.E.2d 549 (1991).
Indictment need not definitely set out acts constituting misbehavior.
- Count in indictment charging that defendants "did keep and maintain a common, ill-governed, and disorderly house to the encouragement of idleness, drinking, and other misbehavior," is sufficiently specific, and is not subject to demurrer because it does not definitely set out acts constituting misbehavior. Jones v. State, 2 Ga. App. 433, 58 S.E. 559 (1907).
Court did not err in admitting evidence of general reputation of defendant's place of business charged as being operated as a disorderly house. Martin v. State, 62 Ga. App. 902, 10 S.E.2d 254 (1940).
Admissibility of evidence of previous gambling charges.
- On trial of defendant for keeping and maintaining a disorderly house, it is not error to permit state to prove that, previous to indictment and during time in question, gambling devices had been found on defendant's premises, and that defendant had pleaded guilty to charges based thereon. Ballenger v. State, 60 Ga. App. 344, 4 S.E.2d 58 (1939).
Presumption that husband is head of house.
- Wife can be convicted of maintaining ill-governed house where at time of offense her husband is serving sentence in work camp, because presumption that husband is head of house is not applicable during protracted absence of husband. Kinney v. State, 80 Ga. App. 754, 57 S.E.2d 359 (1950).
Evidence sufficient for conviction.
- Evidence showing that defendant had encouraged at least four different minors to drink alcoholic beverages in defendant's home on at least three different occasions was sufficient to sustain defendant's conviction for maintaining a disorderly house. Tate v. State, 198 Ga. App. 276, 401 S.E.2d 549 (1991).
Evidence insufficient for conviction.
- Sufficient evidence did not support the defendant's conviction of keeping a disorderly house as a conviction required that there be evidence of customary habits of the house; here, although there was evidence of underage drinking at the party in question, there was no evidence that there had been underage drinking at previous parties held at the defendant's house. Beckom v. State, 286 Ga. App. 38, 648 S.E.2d 656 (2007).
RESEARCH REFERENCES
Am. Jur. 2d.
- 24 Am. Jur. 2d, Disorderly Houses, § 1 et seq.