LawyerInTrainin
Junior Member
The statute states that:
"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."
Ga. Code Ann. § 16-11-44 (West)
My brother was recently arrested for this charge after the police showed up at a party he was attending. He does not live at the house where the party took place (and he never has), but he is friends with the guys who do live there/hosted the party. Apparently, the police have been out to the location before to break up parties (none of which my brother was at). So this time, when my brother and the residents of the house went outside to talk to the police, they were all arrested on the spot. The party had been taking place indoors, and everyone there was of age.
My brother contacted the solicitor, hoping the charges would be dropped if he provided him with documentation proving that he does not live at the house. However, all he was offered was a pretrial diversion, which includes pleading guilty to disorderly conduct, probation, fines, community service, etc.
Thinking the prosecution's case had no merit due to the fact that my brother "keeps and maintains" nothing to do with the house, I hopped on Westlaw to find a case which said the same. However, I can't seem to find anything definitive one way or the other.
I did find this:
"To sustain an indictment for keeping a lewd house, it is only necessary to establish that the defendant contributed to and aided, directly or indirectly, in maintaining and keeping the same."
Clifton v. State, 53 Ga. 241 (1874)
However, that case is nearly 150 years old (surely there's something newer?), and the opinion doesn't contain the facts of the case. Also, I can't seem to find anything that actually defines what exactly is meant by "maintains."
If not living at the house doesn't absolve him, what bearing would this have? (yes, the police had been called to the residence before, but never when my brother was present, so this certainly wasn't a "customary habit" for him)
"We observe that OCGA § 16-11-44 has been construed in a limiting fashion, pointing to the words “common ... disorderly house,” and concluding they require not casual occurrences but general, customary habits of the house. Palfus v. State, 36 Ga. 280, 285(2) (1867)."
Hubbard v. State, 256 Ga. 637, 638, 352 S.E.2d 383, 385 (1987)
Turner v. State, 84 Ga. App. 594, 595, 66 S.E.2d 645, 646 (1951) requires that the activity take place for a "sufficient length of time" for it to violate the statute. Even if similar activity was common at this house, if it was my brother's first time being involved, can he be charged?
I've also read in multiple places that the reputations of the house, its residents, and its common guests can be relevant. In relation to my brother's charge, which would be more important--his reputation or the reputation of the house? (He can easily find loads of people who would speak to his character).
"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."
Ga. Code Ann. § 16-11-44 (West)
My brother was recently arrested for this charge after the police showed up at a party he was attending. He does not live at the house where the party took place (and he never has), but he is friends with the guys who do live there/hosted the party. Apparently, the police have been out to the location before to break up parties (none of which my brother was at). So this time, when my brother and the residents of the house went outside to talk to the police, they were all arrested on the spot. The party had been taking place indoors, and everyone there was of age.
My brother contacted the solicitor, hoping the charges would be dropped if he provided him with documentation proving that he does not live at the house. However, all he was offered was a pretrial diversion, which includes pleading guilty to disorderly conduct, probation, fines, community service, etc.
Thinking the prosecution's case had no merit due to the fact that my brother "keeps and maintains" nothing to do with the house, I hopped on Westlaw to find a case which said the same. However, I can't seem to find anything definitive one way or the other.
I did find this:
"To sustain an indictment for keeping a lewd house, it is only necessary to establish that the defendant contributed to and aided, directly or indirectly, in maintaining and keeping the same."
Clifton v. State, 53 Ga. 241 (1874)
However, that case is nearly 150 years old (surely there's something newer?), and the opinion doesn't contain the facts of the case. Also, I can't seem to find anything that actually defines what exactly is meant by "maintains."
If not living at the house doesn't absolve him, what bearing would this have? (yes, the police had been called to the residence before, but never when my brother was present, so this certainly wasn't a "customary habit" for him)
"We observe that OCGA § 16-11-44 has been construed in a limiting fashion, pointing to the words “common ... disorderly house,” and concluding they require not casual occurrences but general, customary habits of the house. Palfus v. State, 36 Ga. 280, 285(2) (1867)."
Hubbard v. State, 256 Ga. 637, 638, 352 S.E.2d 383, 385 (1987)
Turner v. State, 84 Ga. App. 594, 595, 66 S.E.2d 645, 646 (1951) requires that the activity take place for a "sufficient length of time" for it to violate the statute. Even if similar activity was common at this house, if it was my brother's first time being involved, can he be charged?
I've also read in multiple places that the reputations of the house, its residents, and its common guests can be relevant. In relation to my brother's charge, which would be more important--his reputation or the reputation of the house? (He can easily find loads of people who would speak to his character).
