author: BICHABDSON, Judge.

text:
    ARTHUR BERRY and HARRISON KIMBLE v. STATE.
    No. A-207.
    Opinion Filed November 22, 1910.
    1. LARCENY — Appropriating Lost Property — Information. Upon an information drawn under sec. 2B91, Snyder’s 'Comp. L.. Okla., defining' larceny 'generally, a conviction may Be had upon proof, made as provided in sec 2592. that the accused found lost property under circumstances which gave him means of inquiry as to the owner thereof, and that he appropriated the same to his own use without making a reasonable effort to discover the owner and restore the property; the latter section not creating or defining a separate offense, 'but only prescribing a rule of evidence.'
    2. EVIDENCE — Confessions — Admissibility. Primarily there, are two facts which render a confession inadmissible as evidence; first, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; 'and second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness.
    3. SAIVIE — Burden of Proof. Prima facie any confession is admissible in evidence; and where its admissibility is challenged toy the defendant, the burden is on" him to show that it was procured toy such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.
    4. SAIVIE — Question for Court. The admissibility of a confession, where it is challenged, is - a question solely for the court after hearing, in the absence of the .jury, all the evidence on each side, respecting the circumstances under which the confession was made; and the court is vested with a large discretion in determining the matter.
    5. SAIVIE — 'Province of Jury. After a confession has been admit- . ted, the defendant is entitled to have the evidence in regard to the circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence; and upon his request the defendant is entitled to an instruction on that point.
    6. INSTRUCTIONS — Presumption of Innocence. An instruction that the defendant is presumed to be innocent until his guilt is proved by competent evidence beyond a reasonable doubt, is not erroneous, tout is proper.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; John U. King, Judge.

    Arthur. Berry and Iiarrison Kimble were convicted of grand larceny, and they appeal.
    Affirmed.

      W. A. Killey, Daniel L. Stanley,' and George K. Powell, for plaintiffs in error.

      Chas. West, Atty. Gen., and Smith G. Matson,- Asst. Atty. Gen., for the State.-
    On question of variance: People v. Buelna, 81 Cal. 135; State v. Hayes, 98 Iowa, 619. On admissibility of ■confessions: Dotson v. State, 88 Ala. 208; State v. Leonard, 3 Ore. 157; Thompson v. State, 19 Tex. App. 593; State v. Meekins,. 4-1 La. Ann. 543. Instruction on presumption of innocence: Campbell v. State, 100 Ga. 271.
   BICHABDSON, Judge.

In this case the information charged that plaintiffs in error “unlawfully, fraudulently, stealthily and feloniously did take, steal and carry away eighteen-hundred dollars, good and lawful -money of the Hnited States, the property of one Milton Bagsdale, with the unlawful and felonious intent to then and there deprive him, the said Milton Bagsdale,-of the property aforesaid, and to convert the same to their own use.”. The evidence for the state showed that Milton Bagsdale lost a pocket book containing eighteen-hundred dollars, and that plaintiffs in' error found it; that within a few hours thereafter they learned whose property it was, but nevertheless concealed the fact that they had found it, and immediately took the train to Nacogdoches, Texas, where they were shortly arrested and something over, thirteen-hundred dollars of the money recovered from them. After the state had made this proof and rested, plaintiffs in error moved the court to direct a verdict of not guilty on the ground that there was a fatal variance between the allegations of the information and the proof. This motion the court overruled, and its action in so doing is assigned as error.

Snyder’s Comp. Laws of Okla. defines larceny as follows:

“Sec. 2591. Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”
“See. 2592. One who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or- to the use of another person who is not entitled thereto, without having first made such effort to find the owner and restore the property-to him as the circumstances render reasonable and just, is guilty of larceny.”

It is urged that each of these sections defines a different offense; and that upon an information drawn under section .2591, charging that the defendant did take, steal and carry away certain personal property of another with the intent to convert the same to his own use and to deprive such other thereof, a conviction cannot be had upon proof that the defendant found lost property under circumstances which gave him means of inquiry as to the true owner, and appropriated the same to his own use without first making an effort to find the owner and restore the property; the contention being that where such offense is intended to be charged, the information should specifically set forth the facts enumerated in- the latter.section.

With this contention we cannot agree. We think that section 2591 is the statutory definition of larceny, and that section 2592 only prescribes a state of facts, which -being proved, establishes the offense as defined by the previous section; that it merely enunciates one rule of evidence, a compliance with which proves the crime as previously defined. To constitute larceny, there must be a taking of personal property; it must be done by fraud or stealth, and with a larcenous intent; and these requisites are all present when the facts enumerated in section 2592 exist. The taking is shown when it is proved that the defendant found lost property and took it into his .possession. If the evidence shows that he knew to whom the property belonged or that the circumstances gave him means of inquiry as to the true owner, and he made no reasonable effort to find the owner and restore the property, but on the other hand concealed the fact that he had found it; the -taking is then deemed to have been done by stealth.- And when it is further shown that under such circumstances he appropriated the property to his own use or to the use of any other person not entitled thereto, his larcenous intent is established. The Supreme Court of California has so construed these identical sections in People v. Buelna, 81 Cal. 135, 22 Pac. 396. The syllabus of that case is as follows:

“'Section 485 of the Penal Code, declaring it larceny for one who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner to appropriate such property to his own use, etc., does not create a distinct kind of larceny, but declares a rule of evidence which, being fulfilled, constitutes the crime as defined in section 484 of the Penal Code; and it is proper to instruct the jury as to such rule of evidence under an information drawn under section 484 defining larceny in general, if the evidence tends to show an unlawful appropriation by the finder of lost property as described in section 485.”

In many states where the statutes only define larceny generally as is done in section 2591, and where there appears to be no such statute as section 2592, it is nevertheless held that proof of the facts enumerated in the latter section establishes the crime as defined by the general statute. Flemister v. State, 121 Ga. 1.26, 48 S. E. 910; State v. Weston, 9 Conn. 527, 25 Am. Dec. 46; People v. McGarren, 17 Wend. 460; Brooks v. State, 35 Ohio St. 46. And in State v. Boyd, 36 Minn. 538, it is stated that.this was true at common law. Minnesota, however, had a statute similar to section 2592. And in all the cases in the books involving the larceny of lost property, we have found none in which the opinion cr statement -of facts indicated that the indictment alleged the finding, etc., and none holding that such allegations were necessary. See cases cited above; also United States v. Pearl, 27 Fed. Cas., No. 16,022, 5 Cranch C. C. 392; State v. Bolander, 71 Iowa, 706, 29 N. W. 602; State v. Hayes, 98 Iowa, 619, 67 N. W. 673, 37 L. R. A. 116; Comm. v. Titus, 116 Mass. 42, 17 Am. Rep. 138. The motion to direct a verdict of not guilty was properly overruled.

It is next contended that the court erred in admitting in evidence a confession made by plaintiffs in error to the sheriff while en route from Texas, because the same was not voluntarily made, but whs extorted by fear of punishment and prompted by hope of leniency. When proof of the confession was offered, plaintiffs in error objected to its admission on the grounds just stated. The court then caused the jury to retire, and heard all the evidence on each side bearing upon this question. Plaintiffs in error testified that the sheriff told them that it would be better for them to confess, and that if they did so, he would see to it that they got off with a term of imprisonment for a year and a day, but if they “got tangled up with a lawyer” they would likely get a term of ten or fifteen years; and they stated that it was upon the faith of this promise and under the fear of this implied threat that they made the confession. The sheriff and his attendant each testified that no such conversation nor any portion thereof occurred; that plaintiffs in error broached the subject themselves, voluntarily wrote out on a paper an itemized statement of that portion of the money which they had spent, gave the same to the sheriff, and stated that they wanted to tell him all about the matter. The sheriff then told them that he would like to know the truth in regard to it, whereupon they proceeded to relate the affair; and one of them concluded by saying, “Now, if I will replace this money of Ragsdale’s, don’t you think that will square it?” To which the sheriff replied, “I don’t know a thing in the world about it; I have nothing to do with that.” And the sheriff and his attendant each testified that no promises, inducements or threats of any kind were made. It was also shown that subsequently plaintiffs in error voluntarily made the same confession to the county attorney after the latter had first told them that they were under no obligation to make a statement, and that whatever statement they should make might be used against them. The court held the confession admissible.

Primarily there are two facts which render a confession inadmissible: first, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness. And while the greater number of eases hold the contrary, yet we think the proper rule is that in the absence of a statute governing the matter, prima facie any confession is admissible in evidence; and where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to bring it within one or the other of the conditions stated, unless there is something in the confession itself or the other evidence on the part of the state which shows that it is inadmissible. This was so held in Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; State v. Grover, 96 Me. 363, 52 Atl. 757; Com. v. Sego, 125 Mass. 213; Com. v. Culver, 126 Mass. 464; Rufer v. State, 25 Ohio St. 469; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Storms, 113 Iowa, 385, 85 N. W. 610, 86 Am. St. Rep. 380; State v. Incebice, 126 Iowa, 16, 101 N. W. 273; People v. Barker, 60 Mich 277, 27 N. W. 539, 1 Am. St. Rep. 501; State v. Jones, 171 Mo. 401, 71 S. W. 680, 94 Am. St. Rep. 786. And Professor Wigmore says that this is the practical and natural rule, “for if there is any reason to object to the confession, no one can know it better than the defendant.” He says further: “Looking at the general principles of admissibility and the comparative rarity of untrustworthy confessions, as well as the contingent nature of the dangers supposed to flow from improper inducements, the more practical rule would be to receive confessions without question, unless they are shown to have been improperly induced, — especially since a contrary rule may involve the difficulty of proving a negative.” Wigmore on Evidence, vol. I, sec. 860.

The admissibility of a confession, where it is challenged, is- a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the manner in which the confession was obtained; and the court is necessarily vested with a large discretion in determining the matter, a discretion, however, which should be exercised with great care to the end that the due and proper enforcement of the law on the one hand be not impeded, and that no injustice be done the defendant on the other. In the present ease the court had the witnesses before him,-could observe their demeanor on the stand, their general conduct and appearance, and their manner of testifying, and was in a much better position to form a just estimate of their truthfulness than are we. The evidence was conflicting; the interest of the witnesses was a proper subject for consideration, and the burden was on plaintiffs in error; and we cannot say upon this record that the court erred in admitting the evidence. After a confession has been admitted, the defendant is entitled to have the evidence in íegard to the,manner in which it was obtained' given anew to the jury, not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence; and upon his request the defendant is entitled to an instruction on that point. This was done in the present ease.

/•''^"Lastly it is urged that the court erred in giving the jury the following instruction :

“The court further instructs the jury that of the offense charged in the information and each and every material ingredient thereof the defendants are presumed to be innocent, and this presumption continues until the state shall overcome same by competent evidence, which convinces you of the guilt of the defendants beyond a reasonable doubt.”

The objection is to that portion of the instruction wherein the court stated that “this presumption continues until the state shall overcome same by competent evidence which convinces you of the guilt of the defendants beyond a reasonable doiibt,” the contention being that it continues even' then. There was no error in the instruction given. Sec. 6828, Snyder’s Comp. L. Okla. 1909. How can the presumption continue after it has been overcome? And if it does continue even after guilt has been proved beyond a reasonable doubt, how could a conviction ever result? In many cases the history, philosophy and theory of this presumption has been lost sight of, and the subject has been refined upon to such extent that it has become an absurdity and impossible of a practical application. The sole purpose of the law in creating this presumption is to designate the party upon whom lies at the beginning the risk of non-persuasion and upon whom rests therefore, the duty of producing evidence. And the court instructs the jury in regard to the presumption for a two-fold purpose: that the jurors may be informed upon whom lies the burden of proof, and cautioned against drawing any inferences of guilt from the accusation, arraignment and present situation of the accused. But aside from the cautionary purpose of such an instruction, the presumption of innocence is merely a corollary to the rule that the burden is upon the state to prove the defendant’s guilt, and that the latter may stand in security without producing any evidence until that has been done. The legal measure of proof required to effect persuasion and establish guilt, the rule respecting a reasonable doubt upon the whole case, is a different thing altogether. Wigmore on Evidence, vol. iv, sec. 2511; Thayer’s Preliminary Treaties on Evidence (1898), Appendix B; p. 551; Greenleaf on Evidence, (16th Ed.) chap. 6, see. 14w; State v. Soper, 148 Mo. 217, 49 S. W. 1007; State v. Kennedy, 154 Mo. 268, 55 S. W. 293; People v. Ostrander, 110 Mich. 60, 67 N. W. 1079; State v. Quigley, 26 R. I. 263, 58 Atl. 905; Agnew v. United States, 165 U. S. 36; Waters v. State, 117 Ala. 108, 22 So. 490; Edwards v. State, 69 Neb. 386; 95 N. W. 1038; State v. Maupin, 196 Mo. 164, 93 S. W. 379; Bell v. State, 140 Ala. 57, 37 So. 281; Williams v. State, 144 Ala. 14, 40 So. 405.

We find no error in the proceeding, and the judgment of the lower court is affirmed.

ETJBMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: RICHARDSON, Judge.

license: Public Domain

text:
    HARRY DEEDS v. STATE.
    No. A-312.
    Opinion Filed November 22, 1910.
    1. INTOXICATING LIQUORS — Sales—Evidence—Taking Out Federal License. Upon a prosecution for selling intoxicating liquor, where the date of the alleged sale is definitely fixed by the evidence, proof that subsequent thereto the defendant paid the special tax required of liquor dealers by the laws of the United 'States, is not competent.
    2. SAME — (Presumption from License, The payment by a person of the .special tax l-equired of liquor dealers by the laws of the United States is prima facie evidence of such person’s intention thenceforth, during the term of the license, to violate the prohibition law.
    3. SAME — License Antedating Sale. If there is any evidence from which the jury could legitimately find, that the transaction constituting the sale complained of took place subsequent to the payment 'by the defendant of the special liquor dealer’s tax, then evidence of such payment may be admitted.
    (Syllabus by the Court.)

      Appeal from County Court of Caddo County; B. F. Holding, Judge.

    Harry Deeds was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.

      W. W. Vaughn, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   RICHARDSON, Judge.

The information in this case charged that plaintiff in error sold intoxicating liquor on April 5, 1909. The evidence for the prosecution was to the effect that the sale was made on that specific date, and there was no evidence tending to show a. sale at any other time. The state’s witnesses testified positively to' the date of the transaction, though they were not entirely certain that plaintiff in error was the person who made the sale. The state then offered in evidence a certified copy of a record of the Collector of Internal Revenue at Leavenworth, Kansas, showing the payment by plaintiff in error of the special tax required of retail liquor dealers by the laws of the United States, which record was as follows: “District of Kansas. Name, Harry Deeds; business, K. L. D.; place, G-racemont, Old a.; from what time, April, ’09; amount of tax, $6.25; date of payment or issue of certificate, April 28, 1909; serial number of stamp, 224182; serial number of form 11, 5225; collector’s office, Leavenworth, Kansas.” Plaintiff in error objected to the introduction of the certified copy on the ground that it appeared therefrom that the payment of the tax was made subsequent to the date of the sale in question as charged and proven, and that the same was therefore not competent evidence for any purpose. The court overruled the objection and admitted the certified copy in evidence. Plaintiff in error excepted, and assigns the court’s ruling as error.

We think the ruling was erroneous. This prosecution was instituted under the prohibitory provision of the Constitution separately submitted to a vote of the people. It is there provided that the payment by any person of the special tax required of liquor dealers by the laws of the United States shall constitute prima facie evidence of suph person’s intention to violate said section. Undoubtedly this provision should be construed so as to give the payment of such tax only a prospective and not a retroactive effect as evidence; that is, that the payment of such special tax shall be p-ima facie evidence of the party’s intention thenceforth, so long as the license shall remain in force, to violate said provisions of the law, and not that it shall be evidence of his intention to do so theretofore. Snyder v. State, 78 Miss. 366, 29 So. 78. We think the language of the provision will bear no other interpretation, and certainly the reason and philosophy of it exclude any other. The provision is based upon the legitimate presumption that a person will not procure a license to sell intoxicating liquors unless he intends to sell them; that he will not voluntarily expend money for a useless thing, and that when he pays the special tax and procures the license required of liquor dealers he intends to do what the license authorizes him to do, namely, sell liquor during the licensed term. Woollen & Thornton’s Law of Intoxicating Liquors, sec. 972. The license is hot retroactive, and its subsequent issuance is no'authority lor a sale made prior to the payment of the tax. United States v. Angell, 11 Fed. 34. If there had been any evidence from which the jury could legitimately have found that the sale in question was made on or after April 28, 1909, the day the special tax was paid, then the certified copy in question would have been competent and admissible under an instruction from the court that it should be considered by the jury only if the transaction in question took place after the payment of the tax; but in this case there was no such evidence. The date of the sale was definitely fixed by the prosecution at twenty-three days before the payment of the tax; and under such circumstances the court erred in admitting the certified copy in evidence. Eeversed and remanded for a new trial.

FUBMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    C. H. MOORE and HARRY G. CARPENTER v. STATE.
    No. A-574.
    Opinion Filed November 22, 1910.
    1. APPEAL — Sufficiency of Evidence. Where the evidence is conflicting, and that on the part of the prosecution such that, if •believed by the jury, a verdict of guilty should result, a conviction will not be set aside on the ground that it is not justified by the evidence.
    2. APPEAL — Specification of Error — Sufficiency. A specificat!on of error in a petition in error as follows. “For errors of law occurring at the time and excepted to by plaintiffs in error,” is too general and indefinite to raise any question for review ip the appellate court.
    3. PARTIES TO OFFENSES — Participation — "Acquiescence" — Instructions. It is error to instruct the jury that a person who stands by and consents or acquiesces in the commission of a crime is a participant therein. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or he must aid, assist, abet, advise or encourage its commission.

      4. SAME. Where two defendants were jointly charged with a crime, and all the evidence as to the actual commission of the offense identified one defendant as the person who did the manual act constituting it, and tended to show that the other only aided and abetted therein, an erroneous instruction to the effect that all persons who stand by and consent or acquiesce in the commission of a crime are participants therein, being applicable only to the latter defendant, was prejudicial only to him.
    5- INSTRUCTIONS — “Reasonable Doubt.” The statement in an instruction defining a reasonable doubt that. “A doubt, to justify an acquittal, must be reasonable and arise from a candid and impartial consideration of all the evidence in the case,” is not erroneous as precluding a reasonable doubt arising from a want of evidence.
    6. APPEAL — Venire for Jury — Record. The orders of the court or judge for the drawing of jurors, and directing the issuance of open venires, must he entered of. record; and to be considered on appeal, they must be shown by a transcript of the record, and cannot be shown by affidavit.
    7. TRIAL — Venire for Jury — Time for Objections. The propriety of the court’s action in ordering the issuance and service of an open venire for a certain number of jurors, when the names of sufficient jurors yet remained in the jury box, cannot be raised for the first time after verdict has been rendered.
    8. ASSAULT WITH INTENT TO KILL — Information—Sufficiency. In an information for an assault with intent to -kill, drawn under sec. 2307, Snyder’s Comp. L. Okla., it is not necessary to allege that the intent to kill was felonious, the information alleging that the assault was intentional and wrongful.
    9. SAME — Allegation of Battery. An allegation in an information that the defendant did intentionally and wrongfully assault, beat, cut, stab and wound one C., sufficiently alleges a battery.
    10. ASSAULT WITH INTENT TO KILL — Evidence—Proof of ln^ strument. The fact that an assaulted party was cut in the night time with some sharp instrument; that a serious wound was thereby inflicted upon him which blinded him, covered him » with blood, confined him to his bed for quite a while, and necessitated a physician’s attendance upon him for some considerable time, the weapon remaining in the perpetrator’s possession, were circumstances from which the jury could legitimately find that the assault was committed with a knife or some instrument of that character, and that the same was a deadly weapon.
    (Syllabus by the Court.)

      Appeal from, District Court, Creek County; T. L. Brown, Judge.

      C. H. Moore and. Harry G. Carpenter were jointly convicted of 'assault with intent to kill, and they appeal. Reversed .and remanded as to O. H. Moore.
    Affirmed as to Harry G. Carpenter.

      J. L. Byrne and Luden B. Wright, for plaintiffs in error.-—
    On instruction upon “aiding or abetting”: Drury v. Territory, 9 Okla. 398; Clem v. State, 33 Ind. 418.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
    On definition of reasonable doubt: Chandler v. State, 3 Okla. Cr. 254. On sufficiency, of indictment: Fletcher v. State, 2 Okla. Cr. 200; Smyihe v. State, 2 Oída. Cr. 286-.
   RICHARDSON, Judge.

In this case plaintiffs in error and one John Jones were jointly charged with an assault with intent to kill. The trial resulted in the acquittal of Jones and the conviction of plaintiffs in error as charged. It is contended that the verdict of conviction was not sustained by the evidence in that it was not shown beyond a reasonable doubt that plaintiffs in error were the parties who committed the assault. The evidence on this question was conflicting. John Cheé, the assaulted party, testified that he was called- to the door of his restaurant about midnight, and that when he opened it plaintiff in error Carpenter stabbed him and cut him, and then ran; that there was another man with Carpenter whom witness did not fully recognize but whom he thought to be Moore, but that Jones was not present in so far as witness knew. Ira Payne testified that about the hour stated he was sitting some forty or fifty yards from Johff Chee’s place; that he saw Carpenter go to Chee’s door and knock; that he saw the scuffle and saw three men run away, but that Carpenter was the only one whom he recognized. Plaintiffs in error denied the matter in toto, and their evidence tended to prove an alibi. It will thus be seen that the evidence on the part of the state was such that, if believed by the jury, it fully warranted a finding that plaintiffs in error were the guilty parties. The credibility of the various witnesses and the weight and value to be given their testimony, was a question solely for the jury’s determination; and we cannot say that the evidence does not support the verdict in this particular.

It is next contended that the court erred in permitting John Chee, the assaulted party, to testify in this case, because his knowledge of the English language was so defective as to render him incapable of understanding and correctly answering the questions propounded to him. This matter is not properly before us, now-ever, for the reason that it was not assigned ?s error in the petition in error, the only assignment therein which could be held to include this being the sixth, “For errors of law occurring at the time and excepted to by plaintiffs in error.” It may be that this would be a sufficient assignment in a motion for a new trial, but it is certainly too general and indefinite for a specification of error in the petition in error. Furthermore, from an examination of the record, we think the witness was competent.

The court’s sixth instruction to the jury was as follows:

“If you believe from all the testimony in the case beyond a reasonable doubt that only one of these defendants actually participated in the cutting and the others stood by, and aided, abetted or consented, or acquiesced in the commission of the offense, then all would be guilty of the crime charged, and it is for you to say under all the testimony in this case whether either or all of these defendants were present or did in any manner aid, assist, abet or acquiesce in committing the crime charged.”

It is contended that this instruction was erroneous, because it told the jury that if they believed beyond a reasonable doubt that one of the defendants did the cutting, and that the other two stood by and consented or acquiesced in the assault made by the one, then all would be guilty as charged. The instruction was erroneous. Section 2045 of Snyder’s Comp. Laws Okla. provides that, “All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.” To constitute one a party to a crime under this statute, it is necessary that such person be concerned in the commission of the offense; that is, that he either commit it or aid or abet its commission; and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one'who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime. Drury v. Ter., 9 Okla. 398, 60 Pac. 101; Pearce v. Ter., 11 Okla. 438, 68 Pac. 504; White v. People, 81 Ill. 333; Jones v. People, 166 Ill. 264; Clem v. State, 33 Ind. 418; State v. Orrick, 106 Mo. Ill, 17 S. W.176, 329; Burrell v. State, 18 Tex. 713; People v. Ah Ping, 27 Cal. 490; People v. Woodward, 45 Cal. 293, 13 Am. Rep. 176; Walrath v. State, 8 Neb. 80; Kemp v. Com., 80 Va. 443; Butler v. Com., 63 Ky. (2 Duv.) 435; State v. Hildreth, 31 N. C. (9 Ired.) 440, 51 Am. Dec. 369; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370. While this instruction was erroneous, yet under the evidence it was prejudicial only to plaintiff in error Moore, he being the only one before us whom it was contended, and whom the evidence tended to show, aided and abetted the commission of the crime and the only one to whom the instruction was applicable, all the testimony in regard to the cutting being to the effect that Carpenter was the one who actually committed the act.

It is next contended that the court erred in giving the jury the following instruction:

“The court instructs the jury that the term ‘reasonable doubt’ is a term often used, and probably pretty well understood, but not, easily defined. It is not a mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the ease, which, after the entire comparison and consideration of all the evidence, leaves the minds of.the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. It is not at all times such a doubt as one can give a reason for, but may be a doubt which one cannot at all times give a reason therefor. A doubt to justify an acquittal, must be reasonable and arise from a candid and impartial consideration of all the evidence in the case, and must be such a doubt as would cause a reasonably prudent and considerate man to hesitate and pause before acting upon the graver and more important affairs of life. As applied to the evidence in criminal cases, it means an actual and substantial doubt growing out of the unsatisfactory nature of the evidence in the case. If, after a careful and impartial consideration of' all the evidence in the ease, you can feel and say that you have an abiding conviction to a moral certainty of the guilt of the defendant and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt.”

.Plaintiffs in error complain of that portion of the above instruction wherein the court said: “A doubt to justify an acquittal must be reasonable and arise from a candid and impartial consideration of all the evidence in the case.” The contention is that a doubt might arise from a lack of evidence, and that this portion of the instruction precludes that. We think the objection not well taken. A reasonable doubt might well arise from a candid and impartial consideration of all the evidence in the case, because the jury thought that all the evidence thus candidly and impartially considered was not sufficient to establish the defendant’s guilt beyond a reasonable doubt; that it was wanting in quality or in quantity, in other words that there was a lack of convincing evidence. And if in fact such a lack of evidence existed, that fact could be ascertained only by a candid and impartial consideration of all the evidence that had been given. It would perhaps be better, where the court sees proper to define reasonable doubt at all, to substitute for the expression objected to the statement, that a reasonable doubt is an actual doubt arising from the evidence or the want of evidence in the ease; but we do not hold that the instruction as given was erroneous. We think also that the court should have omitted the statement that, “It is not at all times such a doubt as one can give a reason for but may be a doubt which, one at all times cannot give a reason therefor.” This added nothing to the definition, and was calculated only to mislead.

The next assignment of error is that the jury empaneled to try this cause was not lawfully drawn. This matter was never raised until the motion for a new trial was filed. To that motion was attached an affidavit in which one of the attorneys for plaintiffs in error swore that on á certain date the jury commissioners returned a list of 210 names of jurors for the district court; that on five subsequent occasions the court ordered an aggregate of 140 names drawn from said list, leaving 70 remaining;' and that on September 20, 1909, while there yet remained in the jury box seventy names, the court made an order directing the sheriff to summons from the body of the county 15 persons possessing the qualifications of jurors to serve as petit jurors; that on September 21, 1909, the sheriff returned said 15 persons, and from these a portion of the jury which tried plaintiffs in error were selected; and it is contended that the court erred in ordering an open venire for 15 jurors when there remained 70 unused names in the jury box.

It is not necessary that we determine whether such action on the part of the court would be error, for the reason that there is nothing before this court showing that any of the matters complained of took place. The orders of the court for the drawing of jurors and also for the issuance of open venires are required to be made of record, and they can be shown here only by a transcript of the record and cannot be shown by affidavit. Also, if this matter took place and constituted error, the defendant could not raise this question for the first time after the verdict had been rendered.

The information in this case charged:

“That the said defendants, C. H. Moore, Harry Carpenter and John Jones, on the date and in the county and state aforesaid, with a certain dangerous and deadly weapon, to wit, a knife, which they then and there had and held, did feloniously, intentionally and wrongfully, .assault, beat, cut, stab and wound one John Chee, then and there being, with force likely to cause death, with intent him, the said John Chee, then and there, to injure and kill, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the stated’

Plaintiffs in error demurred to this information on the ground that it did not state facts sufficient to constitute an offense, and they have assigned the action of the court in overruling the demurrer as error. The objections urged are that the information does not allege a felonious intent to kill; that it avers no acts sufficient to constitute an intent to kill; and that it does not charge a battery. The statute under which this information was drawn reads as follows (Sec. 2307, Snyder’s Comp.. L. Okla.) :

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of fire arm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the state prison not .exceeding ten years.”

We find in this statute no requirement that the information allege that the intent to kill was felonious. The act which constitutes the assault and battery must be intentional and wrongful, and it must-be committed with the intent to kill. That is all the statute requires in that respect, and those facts the information explicitly avers. Nor can we understand what act would be sufficient to constitute an intent. An intent is a fact and not an act; it may be evidenced by acts, but the information need -not set out the evidence. Also this information charged that plaintiffs in error did intentionally and wrongfully assault, beat, cut, stab and wound one John Chee with a knife; and if that does not allege a battery, we are at a loss to understand how one could be alleged. See. 2333, Snyder’s Comp. Laws. The demurrer was properly overruled.

The next contention is that the judgment in this case cannot stand for the reason that no evidence was produced tending to show that the assault was committed with a knife, or if so, that ■ the same was- a deadly weapon. The evidence, however, showed that the assaulted party was cut with some sharp instrument; that a very serious wound was inflicted upon him which blinded him, covered him with blood, confined him to his bed for quite a while, and necessitated a physician’s attendance upon him for some considerable time. Moreover the wounds which were inflicted upon the assaulted party were exhibited to the jury; and when all these facts are considered we cannot say that the jury were not justified in finding that the wounds were inflicted with a knife or some instrument of that character, and /that the same was a deadly weapon. The law does not require that death be in fact produced or that any injury at all in fact result. But the injury is some evidence of the kind and character of weapon which inflicted it and the degree of force used. The assault was committed in the night time, the weapon remained in the perpetrator’s possession; it was not in court to be exhibited and inspected, and the circumstantial evidence adduced was competent and sufficient to prove its character.

For the error indicated, the judgment is reversed and the cause remanded as to plaintiff 'in error C. H. Moore, with directions to grant him a new trial; and the judgment is affirmed as to plaintiff in error Harry G-. Carpenter.

FIJBMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
      In re BEN TUCKER.
    No. A-770.
    Opinion Filed November 22, 1910.
    1. TRIAL — Correction of Record. Sec. 6095, Snyder’s Comp. L. Okla., prescribing the procedure for the correction of mistakes or omissions of the clerk, or of an irregularity in obtaining a judgment or order, refers solely to civil matters and has no application to criminal cases.
    2. SAME — Record of Convening of Court. Where the clerk fails or neglects to enter upon the journal of the court the formal order showing the convening of the court, the same may be entered in conformity with the facts, even after the expiration of the term.
    3. SAME — Notice of Order of Correction. The formal order opening the court is one with which no party to litigation pending therein has anything to do, -which adjudges nothing respecting any person’s right in any case, and upon which no person is entitled to a hearing before it is made; and where the clerk neglects to enter the order in regular course, no notice is required to be given to any person ibefore a nunc pro tunc entry thereof can be made.
    4. SAME — Nunc Pro Tunc Entry — Collateral Attack. A nunc pro tunc entry of an order showing the convening of the county court, imports absolute verity -when brought into question in any subsequent proceeding other than a proceeding to vacate or correct it instituted in the court in which the order was made.
    (Syllabus by the Court.)

      Original Proceeding by Writ of Habeas Gorpus.

    The petitioner, Ben Tucker, being imprisoned under a conviction for a violation of the prohibition laws, seeks by writ of habeas corpus to be released.
    Writ discharged and petitioner remanded to custody.
    P. K. Morrill, for petitioner.

      J. M. Williams, for respondent.
   RICHARDSON, Judge.

On September 11, 1909, during what purported to be the July term of the County Court of Jackson County, the petitioner was convicted of a violation of the prohibition law, and was sentenced to pay a fine of $500.00 and to be imprisoned in the county jail for a term of sixty days. He thereupon obtained an allowance of time for making and serving a case preparatory to taking an appeal, but for some reason the appeal was never perfected. After the expiration of the time allowed, the county court issued a commitment directing that the petitioner be imprisoned in accordance with the judgment theretofore rendered against him. Being confined thereunder, and contending that the same was illegal and void, he applied for a writ of habeas corpus for the purpose of having the legality of his imprisonment inquired into and determined. The writ was issued, and return thereto has been made.

The petitioner’s contention is that the trial, judgment and commitment are void, for the reason that the county court was not convened within two days after the first day of the term as fixed by law;' that it did not in fact convene until August; that the term had then lapsed and could not be revived, and that the convocation of officers and persons who met and tried petitioner did not constitute a court. The respondent, however, has filed certified copies of the journal entries, showing the convening of the court on July 6, 1909, and further showing that the court was in continuous session from that time until after petitioner was tried. The record of petitioner’s trial, conviction and sentence was duly entered in the journal in regular course, but it appears that the order convening the court and some other orders following that, not affecting the petitioner, however,. were entered in the clerk’s minute book, and were afterwards entered in the journal nunc p-o iunc. In reply, the petitioner contends that the entry showing the. convening of the court does not speak the truth; and that its entry nunc pro iunc is unavailing, because made without any notice to him, and that notice was necessary under sec. 6095 of Snyder’s Comp. L. Okla.

The order convening the court is not within the provisions of the section referred to, prescribing the procedure for the correction of mistakes or omissions of the clerk or of an irregularity in obtaining a judgment or order; and is not of such character as to require notice’to the various parties to the causes tried during tire term before a nunc fro tunc entry thereof may be made. That section refers solely to civil matters, and Is further limited in its application to oilers made in some proceeding pending before the court. It lias no reference to a mere formal order opeuing the court, an order with which no party to litigation pending therein has anything to do, which adjudges nothing respecting any person’s right in any case, and upon which no person is entitled to a hearing before it is made. The entering of such an order in conformity with the facts may be lawfully done without notice to any person, even after the expiration of the term. And when properly entered, so long as it stands, in any subsequent proceeding in which it may be brought in question, other than one to vacate or correct it instituted in the court in which it was made, it imports absolute verity. Willard v. Whitney, 49 Me. 235; Maynes v. Brockway, 55 Iowa, 457, 8 N. W. 317; Davis v. Messenger, 17 Ohio St. 231; Hansen v. Schlesinger, 125 Ill. 230, 17 N. E. 718; Barringer v. Booker, 1 Ind. Ter. 432, 35 S. W, 246; In re Macke, 31 Kan. 54, 1 Pac. 785. The journal entry is therefore conclusive of this question in this proceeding.

The writ is discharged and the petitioner is remanded to the custody of the sheriff with directions to enforce the judgment of the court.

FUKMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    JOE ELLIOTT v. STATE.
    No. A-96.
    Opinion Filed November 22, 1910.
    1. HOMICIDE — Information—Allegation of* Instrument — Variance. ■Under an information for manslaughter charging the death of the deceased to have been directly produced by a blow from the fist or foot of the defendant, a conviction cannot be had upon proof that the deceased was knocked down by the defendant and was killed by being trampled upon by a horse.
    2. SAME — Test of Variance. Where the instrument of- death alleged and -that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved, are practically and substantially, though not identically, the same .as that alleged.
    3. SAME. Where the allegation is that the accused directly inflicted the fatal wound, and the proof shows that the same was produced by some other different and independent agency, there is a fatal variance.
    4. SAME — Allegations—Prevention of Variance. Wherever there is doubt or uncertainty as to the means by which death was effected, all the different probable means should be alleged, either in separate counts in the indictment or information, or in the alternative in the same count, so as to provide against contingencies in the proof and prevent a variance.
    (■Syllabus by the Court.)

      Appeal from District Gourt, Caddo County; S. II. Russell, Judge.

    Joe Elliott was convicted of manslaughter in the second degree, and his punishment assessed at a fine of $1,000.00. From an order overruling a motion for a new trial, he appeals.
    Reversed and remanded.

      A. J. Morris, for plaintiff in error.
    Citing: 3 Greenleaf on Ev., sec. 140; Guedel v. People, 43 111. 226; Eelmerleing v. Comm. (Ky.)' 37 S. W. 264; Ciarle v. Comm. (Kj.) 63 S. W. 740; State v. Reed (Mo.) 55 S. W. 278; Danforth v. State (Tex.) 69 S. W. 159; Rex. v. Kelley, 1 Moody, C. C. 113, 1 Lewin Cr. Cas. 193; Rex v. Thompson, 1 Moody, C. C. 139, 1 Lewin Cr. Cas. 194;
      Brown’s Case, 1 Lewin Cr. Cas. 165; 1 Whart. Cr. Law (10th Ed.) sec. 519; 1 McLain, Cr. Law, sec. 377.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BICHABDSON, Judge.

The information in this case charged plaintiff in error, hereinafter called the defendant, with the crime of manslaughter in the first degree. As to the manner of the killing, it alleged in substance that with his clenched fist the defendant struck one Isaac Carrico upon the head, breast and left side, and with his feet stamped and crushed the said Isaac Carrico, and by the said striking, stamping and crushing then and there wounded the said Isaac Carrico, “from which said striking, kicking, stamping and crushing done and committed as aforesaid he the said Isaac Carrico did then and there die.” On a trial upon this information the defendant was convicted of manslaughter-in the second degree.

The evidence disclosed that the defendant and the deceased! were engaged in a fist fight in the former’s yard. The deceased had just dismounted from a horse on which he had ridden up, and during the fight he held the horse by the bridle reins through-which he had thrust his left arm, and the horse was rearing and. plunging. The evidence for the state further tended to show that, in the difficulty the defendant knocked the deceased- down, and that the latter fell close to the horse’s forefeet. A woman and her daughter who lived nearby, who witnessed the difficulty, and were not related to either party, each testified that after the deceased fell it appeared that the horse stamped upon him with his forefeet, and the deceased expired within a few minutes thereafter. An examination of deceased’s body by a physician and the coroner’s jury disclosed that he had received some blows about the head, none of which, however, were mortal or even dangerous in their effect;, and also that a rib was broken immediately over the heart and the flesh bruised there, and the physician testified that this was the fatal' wound. The- defendant testified that during the fight he struck the deceased only about the head; that the horse in rearing and lunging struck each of the combatants and knocked them both over; that when the defendant got up the deceased was lying on the ground and the horse had pulled loose; that it was immediately apparent that deceased was seriously injured, and defendant called for and procured some water and tried to revive and aid him, but he died in a few moments.

The court instructed the jury as to manslaughter in the,first degree, predicating the instruction upon the theory that deceased was killed by a blow delivered with defendant’s fists; and the court then gave the jury the following instruction as to manslaughter in the second degree:

“12. Or, if you believe from the evidence beyond a reasonable doubt that the defendant did unlawfully commit an assault and a battery upon the person of Isaac Carrico, as such an assault and battery have been herein before defined to you, by then and there striking the said Carrico, as alleged in said information, in and upon the head, or breast, or left side of the said Carrico and did then and there by the act of striking and assaulting the said Carrico inflict upon the said Carrico an injury and a wound from the effect of which, and as the result of which, the said Carrico then and there fell to the ground and by reason of the said acts of the defendant was then and there prostrate and helpless upon the ground, and you further believe that the defendant then and there knew that the said Carrico was so helpless and prostrate upon said ground and then and there knew that he was in imminent danger of being killed, or of such bodily harm being done him as would probably result in the death of said Carrico, by being trampled upon or otherwise injured by the horse of deceased, and you further And that while in such position and condition the said Carrico was trampled upon and injured by said horse, and from which said trampling upon and injury the said Carrico then and there died, and that it was in the power of the defendant to prevent the said horse from so trampling upon and injuring the deceased, if you find that he was so injured and trampled'upon, and you believe that the said defendant failed and neglected and refused to prevent the injury and that by reason of his said failure and neglect and refusal so to do, the said Carrico was then and there wounded and injured and then and there died from the effect of said wound and injury, then you are instructed that, under such circumstances as herein in this paragraph defined' to you, the defendant is guilty of manslaughter in the second degree and you will so find.”

The action of the court in giving this instruction is assigned as error, and we think the assignment well taken. This instruction told the jury in effect that if the defendant unlawfully struck the deceased and knocked him to the ground where he was in danger of being trampled upon by the horse, and that the defendant then saw and realized deceased’s said danger, and that it was in the defendant’s power to rescue him from that danger, and that the defendant failed and neglected to do so, and that deceased was killed b3r being trampled upon by the horse, then the jury should convict the defendant of manslaughter in the second degree." Certainly a person is guilty of an unlawful homicide who wilfully and wrongfully or through culpable negligence casts or knocks another under a horse’s feet, whereby the other is killed. If that be 'done unlawfully and with a premeditated design to effect death, it is murder. And also under proper allegations in the indictment or information, the jury might well find such an act, if done .wil-fully and unlawfully, though without a design to kill, to be one imminently dangerous to the deceased, evincing a depraved mind in the perpetrator, regardless of human life, and therefore murder. Under other circumstances it could be manslaughter in either the1 first or second degree. But under an information charging the death of the deceased to have been directly produced by a blow from the fist or foot of the accused, a conviction for no degree of unlawful homicide can be had upon proof that death was caused by the deceased’s being trampled upon by a horse, although the wrongful act of the accused may have placed the deceased in the situation where the trampling could and did occur. Such a showing constitutes a fatal variance between the allegation and the proof.

The law is fairly liberal to the prosecution so far as the question of variance between the instrument of death alleged and that proven is concerned; and where the instrument laid and. that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. Thus evidence as to a dagger, sword, bayonet, hatchet, etc., have been held to support the averment of a knife; striking with a stick, club, metal bar or pistol an allegation of striking with a rock; shooting with a gun an allegation of shooting with a pistol; and strangling with a scarf or cord an averment of a strangling or choking with the hands. But if the allegation be of a stabbing or shooting and the evidence shows a poisoning or starving, the variance is fatal. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved, are practically and substantially, though not identically, the same as that - alleged. And it is held.with practical uniformity that where the allegation is that the accused directly inflicted the fatal wound, and the proof shows that the same was produced by some other different and independent agency, though under such circumstances as to make the accused criminally responsible therefor, there is a fatal variance. Thus it is said in Wharton on Homicide, 3d Ed., sec. 567: “Where an indictment stated that the defendant assaulted the deceased, and struck and beat him upon the head, and thereby gave him divers mortal blows and bruises of which he died, and it appeared in evidence that the death was by the deceased falling on the ground in consequence of a blow on the head received from the defendant, it was held that the cause of death was not properly stated ”; citing Rex v. Thompson, 1 Moody, C. C. 139; State v. Reed, 154 Mo. 122, 55 S. W. 278; People v. Tannan, 4 Park. Crim. Rep. 514; Collins v. State (Tex. Cr. App.) 83 S. W. 866; Rocha v. State, 43 Tex. Cr. Rep. 169, 63 S. W. 1018; Gibson v. Com., 2 Va. Cas. 111; Rex v. Kelly, 1 Moody, C. C. 113; Wrigley’s Case, 1 Lewin, C. C. 127; Rex v. Martin. 5 Car. & P. 128; Gipe v. State (Ind.) 75 N. E. 881, 1 L. R. A. (N. S.) 419.

Greenleaf on Evidence, vol. 3, sec. 140, states the rule thus: “But if the evidence be of a death in a manner essentially different from that which is alleged,— as if the allegation be of stabbing or shooting, and the evidence be of poisoning, or if the allegation ■ be of death by blows inflicted by the prisoner, and the proof be that the deceased was knocked down by him and killed by falling on a stone, the indictment is not supported.”

And the Court of Appeals of Kentucky, in Helmerking v. Com., 100 Ky. 74, 37 S. W. 264, held that “upon the trial of a defendant under an indictment charging him with murder by 'striking, beating, bruising and mortally wounding’ the deceased, he cannot be convicted upon evidence that he knocked deceased down, and that in falling deceased struck his head against some hard substance which caused his death.” See, also, Clark v. Com., 111 Ky. 443, 63 S. W. 740; Phillips v. State, 68 Ala. 469; and Guedel v. People, 43 Ill. 226.

In State v. Reed, 154 Mo. 122, 55 S. W. 278, it was held that “where an indictment for homicide charged that death resulted from a blow with a pick, and several witnesses testified that death resulted from a fall on the pavement caused by a blow from defendant’s fist, such evidence, if true, constituted á fatal variance; and hence defendant was entitled to an instruction that if the jury found such evidence to be true, they should acquit, though there was evidence to the contrary.”

In State v. Townsend (Del.) 1 Houst. Cr. Cases, 337, where the indictment was in two counts, one alleging the fatal wound to have been inflicted by a blow on the head delivered with a brickbat, and the other, by a blow delivered with a “black-jack loaded with lead,” the court said: “If the deceased’s skull was fractured, not by a blow of some kind inflicted by the prisoner, but by his falling after, he was struck by, him, with his head against a stone or some other hard substance in the street, and there is sufficient, evidence to satisfy the jury that such was the case, then the prisoner could not be convicted of manslaughter or any other offense under the indictment, because it does not so allege the killing, but in a wholly different and in a much more direct manner. Or, if the fatal blow was given in any other method, or in any way substantially and. essentially different from those alleged in the indict.ment, — the prisoner should be acquitted.”. See, also, State v. Taylor (Del.) 1 Houst. Cr. Cases, 436; and Witt v. State (6 Cold.) 46 Tenn. 5.

We think the instruction complained of clearly erroneous under. the allegations in the information. Wherever there is doubt or uncertainty as to the means by which death was effected, all the different probable means should be alleged, either in separate counts in the indictment or information, or in the alternative in the same count, so as to provide against such contingencies in that respect as are likely to arise from the proof.

The cause 'is reversed and remanded with directions to set aside the judgment and grant the defendant a new trial.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: EURMAN, Presiding Judge.

text:
    JOHN ETTER v. STATE.
    No. A-511.
    Opinion Filed November 22, 1910.
    1. APPEAL AND ERROR — Case^Made — Service and Settlement— Record. Where the record fails to show that the case-made was ever served upon the county attorney or submitted to and approved by the county judge, the case-made will .be stricken from the record.

      2. INTOXICATING. LIQUORS — Imitations—Information—iDuplicity. Ca) If spirituous, fermented or malt liquor and any imitation or substitute for spirituous, fermented or malt liquors are sold at one and the same time, such sale constitutes but one offense, for which there can be but one conviction, and'it is proper for an information charging such an offense to contain two counts, one charging the sale of spirituous, fermented and malt liquors, and the other count charging the sale of an imitation or substitute of spirituous, fermented, vinous and malt liquor; and a conviction under either or both of said counts will be a conviction for but one offense, and subject to but one punishment.
    (b) iln an information for selling any substitute or imitation for spirituous, fermented and malt liquor capable of being used as a beverage, it is not necessary to allege that such liquor was intoxicating or that it contained more than one-half of one per cent, alcohol.
    (c) It is a violation of the prohibition' law of this state to sell or otherwise furnish any spirituous, vinous, fermented or malt liquor or any substitute or imitation thereof, regardless of the per cent, of alcohol contained therein.
    (Syllabus toy the Court.)

      Appeal from Ottawa County Court; W. JJ. Cooler. Special, Judge.

    Defendant was convicted for violating the prohibition Jaw and was fined $50.00 and sentenced to 30 days’ confinement in the county jail. Defendant appealed.
    Appeal dismissed.

      F. B. Fudlcerson, for appellant.

      Fred S. Caldwell, for the State.
   EURMAN, Presiding Judge.

1. This case-made must lie stricken from the record. The record fails to show that the ease-made was ever served on the county attorney or was ever submitted to or approved by the county judge. We must therefore sustain the motion made on behalf of the state to strike out what purports to be the case-made in this ease.

2. The transcript of the record shows that a motion in arrest of judgment was filed, in which the sufficiency of the information .was attacked upon the ground that it charged two offenses. The charging part of the information is as follows:

“1. That the said John Etter on said date and in said county and state, then and there being, did then and there wilfully and unlawfully, sell, barter, give away and otherwise furnish to one John Luclcy two bottles of ‘Rochester,’ the same being a spirituous, fermented and malt liquor capable of being used as a beverage, contrary to the form of the statutes, in such cases made and provided and against the peace and dignity of the ‘state.
“2. That the said John Etter, on said date and in said county and state, tlien and there being, and on the occasion and by the same acts above set forth, did then and there wilfully and unlawfully, sell, barter, give away and otherwise furnish to one John Lucky, a quantity of an imitation and substitute of a spirituous, vinous, fermented and malt liquor, named ‘Rochester,’ capable of being used as a beverage, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state. Yern E. Thompson,
“County Attorney.”

It is seen from this that while the information did contain two counts, they both relate to the same transaction, the first count-charging'the sale of two bottles of “Rochester,” same being a spirituous, fermented and malt liquor capable of being used as a beverage, the second count charging the sale of the same liquor, but alleging that it was an imitation and substitute for spirituous, vinous, fermented. and malt liquor, named “Rochester.” Both counts of the information are in the language of the statute. They refer to the same transaction, charged but one offense, and the information is therefore sufficient. For a complete discussion of this question see Moss v. State, infra, decided at the present term of this court. The trial judge therefore did not err in refusing to sustain the motion in arrest of judgment.

Exceptions were reserved to the following instruction of the court.

“It is a violation of the prohibitory' liquor law of this state to sell or otherwise furnish any spirituous, vinous, fermented or malt liquor or any imitation substitute therefor regardless of the per cent, of alcohol contained therein.”

This instruction was a proper interpretation of the law. See Moss v. State, infra, decided at the present sitting of this court. We find no error in the record, and the judgment of the lower court is therefore affirmed.

DOYLE and RICHARDSON, Judges, concur.


author: FURMAN, Presiding Judge.

text:
    R. H. MORRIS v. STATE.
    No. A-134.
    Opinion Filed November 22, 1910.
    1. INTOXICATING LIQUORS — Offenses — Evidence. For evidence sufficient to support a conviction for a violation of the prohibition law, see opinion.
    2. PARTIES TO OFFENSES — Participation—Instructions, (a) All persons are principals who are concerned in the commission of an offense whether they profit by the commission of such offense or not.
    (b) Instructions not applicable to the case should be refused.
    3. APPEAL AND ERROR — Harmless Error — Instructions. Although an instruction may not be technically correct, yet if the evidence is of such a character that the defendant could not have been injured thereby, the error will not authorize a reversal of the judgment.
    (Syllabus by the Court.)

      Appeal from Muskogee. County Courtj W. C. Jackson Judge.

    Defendant was convicted for violating the prohibition law and sentenced to confinement in jail for a period of 40 days, and to pay a fine of $3000.00, and he appeals.
    Affirmed.

      S. M. Rutherford, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN, Presiding Judge.

1. Defendant relies in his brief upon three grounds for reversal. First: Want of testimony connecting the defendant with the sale of the whiskey. Second: Failure of the court to give the jury the instructions requested by the defendant. Third: The giving to the jury by the court of instruction number four.

The state’s witness, J. P. Potts, evidently did all in -his power to avoid answering the questions asked by the county attorney and to screen the defendant. Instead of weakening his testimony it only adds to its force and effect. After repeated evasions, being closely pressed by the county attorney, the following questions were asked and answers thereto returned by the witness :

“Q. I want you to state and T now ask you if within twelve months prior to October 29, 1908, you have purchased any intoxicating liquors in the R. PI. Morris place of business down on South Second street? A. Yes, sir. Q. Well, when, was it? A. I think the last whiskey I got there was in September, somewhere along there. * * * Q. When was it you bought in the R. H. Morris place of business from one of his clerks, as nearly as you can remember? A. Some time in August, the last of August or the 1st of September, as near as I can remember. Q. How much did you get at that time ? A. A half pint. Q. How much did you pay for it ? A. Fifty cents. Q. That in this county and state. A. Yes, sir.”

This evidence shows that the sale was made in the defendant’s place of business and by one of his clerks, and therefore it directly connects the defendant with the sale and fully supports the verdict of the jury.

2. The defendant requested the court to instruct the jury as as follows:

“You are further instructed that, before you would be authorized to find the defendant guilty, you must find beyond a reasonable doubt that the party from whom Potts purchased this whiskey was acting under the direction, with the knowledge and consent of R. H. Morris and that R. PI. Morris profited by the sale.
“You are further instructed that, if the sale was made outside of the room occupied by R. H. Morris, the defendant, and by some party other than R. IP. Morris, you must also find and believe that R. PI. Morris knew and consented to and was interested in such sale.”

. The first requested instruction was clearly erroneous because it required the jury to find beyond a reasonable doubt that R. H. Morris profited by the sale. This is not the law. Hnder our statute all persons are guilty as principals who are concerned in the commission of an offense, and it is immaterial as to whether or not they profit by its commission. The second instruction is not applicable to the testimony, so the court did not err in refusing the instruction requested.

3. The fourth instruction given to the jury by the court is as follows:

“The court instructs the jury that if you'find from the testimony that the defendant sold intoxicating liquor as charged in the information, or that he was interested in the sale, you will find the defendant guilty, and if you do not so find you should acquit the defendant.”

The court had previously instructed the jury upon the presumption of innocence and the doctrine of reasonable doubt. It is true that this instruction permitted the jury to convict the defendant if they found that he was interested in the sale, while the statute makes all persons guilty who are concerned in the commission of an offense. It may be true that the court should have used the word concerned instead of using the word interested, but this should not work a reversal of the ease, because the testimony shows that the sale was made in the place of business of the defendant and by one of his clerks. The testimony also established the fact that the defendant’s place of business was fixed up as a bar and that beer as well as whiskey was sold there. The defendant cannot keep such a place of business and then escape legal responsibility for what is sold there. Under these conditions the defendant could not have been injured by using the word “interested” in the sale instead of “concerned” in the sale.

The other assignments of error are not specifically presented and urged in the brief; and, even if they were, they are not of such a character as would require a reversal of the case. The judgment of the lower. court is affirmed.

DOYLE and RICHARDSON, Judges, concur.


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    CHARLEY THOMPSON v. STATE.
    No. A-224.
    Opinion Filed November 22, 1910.
    INDICTMENT AND INFORMATION — Necessity of Indictment — Felony Antedating Statehood. A defendant charged with the commission of a felony prior to statehood, in that portion of Oklahoma which then constituted Indian Territory, can be prosecuted only by indictment.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; John H. King, Judge.

    The defendant was prosecuted by information for the crime of forgery and sentenced to seven years’ confinement in the state penitentiary and appealed.
    Reversed.

      Powell & Parks, for plaintiff in error.

      Smith C. Matspn, Asst. Atty. Gen., for the State.
   FURMAN, Presiding Judge.

The defendant was prosecuted by information for the offense of forgery, alleged to have been committed on the 16th day of August, 1907, in that portion of the State of Oklahoma which, prior to statehood, constituted Indian Territory. This being the case, the defendant could, be prosecuted for this offense by indictment only, as the law with reference to information was not then in force in that section of the country. Under a provision of the Enabling Act, the terms of which were adopted and accepted by our Constitution, a defendant charged with having committed a crime in the Indian Territory before statehood is entitled to be tried and dealt with under the law as it existed in that territory.

The trial court therefore erred in overruling the demurrer of the defendant to the information. The Attorney General confesses error in this matter. The judgment in this case is therefore reversed, with directions to the lower court to set aside the verdict and dismiss the prosecution.

DOYLE and RICHARDSON, Judges, concur.


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      J. E. CHILDERS v. STATE.
    No. A-509.
    Opinion Filed November 22, 1910.
    1. INTOXICATING LIQUORS — Unlawful Possession — Information. Where an information charges that the defendant had in his possession certain spirituous, vinous, fermented and malt liquor with the intention of violating the provisions of the prohibitory liquor law of the ’State of Oklahoma, it is not necessary for the information to go further and charge that said liquor contained more than one-half of one per cent, alcohol.
    2. SAME. Where an information charges that the defendant had in his possession prohibited liquors with the intention of violating the provisions of the prohibitory liquor laws of the State of Oklahoma, it is sufficient to charge an offense.
    (Syllabus by the Court.)

      Appeal from Ottawa County Court; S. C. Fullerton, Judge Pro Tempore.

    Defendant -was convicted for violating the prohibition law and was sentenced to pay a fine of $50.00 and imprisonment in the county jail 30 days. Defendant appealed.
    Affirmed.

      F. D. Fulkerson, for plaintiff in error.-
    -Citing Michaels v. 'State (Okla. C'r.) 103 Pac. 1069.

      Fred S. Caldwell, for the State.
   FURMAN, Presiding Judge.

Defendant filed, a demurrer to the information in this case upon two grounds: First, that said information did not allege that the spirituous, vinous, fermented and malt liquor which the defendant was charged with having in his possession with the intention of violating the provisions of the prohibitory liquor law of the State of Oklahoma contained as much as one-half of one per cent, alcohol. Second, that the allegation that the defendant had such, liquor, in his possession with the intention of violating the provisions of the prohibitory liquor law of the State of Oklahoma did not charge the defendant with the commission of an offense. This demurrer w.as by the court overruled and the defendant excepted. It is not necessary for an information or indictment charging the defendant with selling or with having in his possession with intent to sell the liquor described in the information to allege that such liquor contained as much as one-half of one per cent, alcohol. See John Etter v. State and B. B. Moss v. State, both of which cases were decided at the present term of this court, infra. In the case of State v. Feeback, 3 Okla. Cr. 511, this court said:

“The indictment in this ease, in effect, charged the defendant with having the unlawful possession of the liquor with the intention to violate all the provisions of the statute against selling, bartering, giving away, etc. In the.Michael Case the court said it was necessary to allege the defendant’s intention to violate some one of the provisions. The crime is none the less complete if he intended to violate all of them. Violating the provisions against selling, bartering, giving away, furnishing, or removal from one part of the state to another is no^ part of the offense of having the unlawful possession with the intention to violate the law. Possession of the liquor with the intention of violating any provisions of the statute is a. criminal overt act. This is the offense described in the statute. The information in the Michael Case was not in the language of the statute, nor was the language used equivalent to the words of the statute. To say that a man intends to use the. liquor in violating the law does not charge any offense for the reason that it is too indefinite.”

In this case the information charged the defendant with having in his possession the liquor described in the information with the intention of violating the prohibitory liquor law of the State of Oklahoma.

Upon the authority of State v. Feeback we hold that the information in the case at bar was sufficient, and that the court did not err in overruling the demurrer thereto. The charge of the court was responsive to the information and the testimony, and was free from error. The judgment of the lower court is therefore affirmed.

DOYLE and RICHARDSON, Judges, concur


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    A. E. PERKY v. STATE.
    No. A-664.
    Opinion Filed November 23, 1910.
    1. APPEAL. AND ERROR — Case-Made—Expiration of Time. When the time for preparing and presenting a case-made has expired, the court is without jurisdiction to grant an additional extension of time. That which has already expired cannot be extended.
    2. SAME — Transcript—Requisites. Where a case-made has -been held void because it was not served in time, and where the clerk of a district court has not certified that the copies of the pleadings, findings and conclusions of the court as contained in the case-made, are true and correct copies of the same as shown by the record of the district court, such record cannot be considered as a transcript of the record of the court below upon the certificate of the judge of the district court, attested by the clerk, that the pleadings, orders and process are true and correct copies of the originals.
    .(Syllabus by the Court.)

      Appeal from District Court, Comanche County; J. T- Johnson, Judge.

    Defendant was convicted of the crime of grand larceny and sentenced to four years’ imprisonment in the state penitentiary, and appealed.
    Appeal dismissed.

      J. F. Thomas, for plaintiff in error.

      Chas. L. Moore, Asst. Atty. Gen., for the State.
   FURMAN, Presiding Judge.

The defendant attempted to prosecute this appeal by case-made. The motion for a new trial was overruled by the district court on the 22nd day of October, 1909. The court granted the defendant 90 .days in which to prepare and serve a case-made. This time expired on January 21, 1910. On the 18th day of January the court granted 10 days additional time in which to prepare and serve a case-made, which said additional time expired on January 31, 1910. On the 2nd day of February, 1910, and on the 12th day of February, 1910, the court attempted to grant further extensions of time in which to prepare and serve a ease-made. Said additional extensions of time and said orders were void, because after January 31 the court lost jurisdiction to make an additional order in the case. This question has been decided so often that citation of authority is useless. That which has already expired cannot be extended. The case-made was not presented to the judge until the 5th day of March, 1910. We must therefore sustain the motion of the Attorney General to dismiss the pretended case-made.

There is not in the record any certificate of the clerk to the transcript of the record. In the case of Abel v. Blair, 3 Okla. 402, the Supreme Court of Oklahoma said:

“But there is nowhere in the record any certificate of the clerk of the district court that they are true and correct copies. There is attached to this record the certificate of the judge of the district court, who settled the case-made, That the same, as above set forth, and as corrected by me, is true and correct, and contains a true and correct statement of all the pleadings, motions, orders, evidence, findings, proceedings and judgment had in said cause/ and this is attested by the clerk. This attestation of the clerk, however, does not make these copies a transcript. The clerk has not certified that they are true and correct copies of the original pleadings, findings and conclusions as shown by the record in the court beloAv. All that the clerk has done in this case, is to attest the case-made. This attestation is not a certificate that the things therein contained are true and correct, or that anything that may be contained in the case-made is true and correct. All that the clerk does is to attest the signature of the judge. It is not the business of the clerk to examine the case-made to see whether it is correct or not, and even should he do- so, and find that it was incorrect, what power would lie have to so certify? The law gives him none. He would have no right to certify that the facts which the judge had stated were true, were not correct as shown by the record. His only duty is to attest; that is, to witness, the signature of the judge who settled and signed the case. When this is done, it authenticates the signature of the judge to the certificate to the case made, but that does not make the judge’s certificate sufficient to treat the record, if void as a case-made, as a transcript of the record in the court below. In the case of Whitney v. Harris, 21 Kan. 96, the case was taken to the Supreme Court on a bill of exceptions. This bill of exceptions was held to be insufficient as such because it did not contain all of the record and proceedings of the court below, and plaintiff in error then asked that the record be considered as a transcript, but the Supreme Court denied this request upon the ground that the certificate of the clerk to the bill of exceptions did not state that the copies contained in the record were true and correct copies of the original pleadings and proceedings of the court, and that the certificate of the judge to the bill of exceptions was not sufficient to entitle the record to be used as a transcript. The court in this case said:
“ ‘Besides, the judge does not have authority to certify to the correctness of copies of the record, or copies of any other proceedings which are already of record. It is the duty of the judge only to see that the original record is made up properly, and that it speaks the truth; and the clerk then certifies to the correctness of copies thereof, or to copies of portions thereof. But the clerk does not, and has not in this case, certified to the correctness of the copies of the pleadings copied into this bill of exceptions. That is, while the clerk certifies that the copy of the bill of exceptions brought to this court is a correct copy of the original bill of exceptions, yet he does not certify that the original pleadings or proceedings, or any of them, were correctly copied into the original bill of exceptions, and he does not certify that the copies of pleadings and proceedings found in the copy of the bill of exceptions brought to this court are true copies of the original pleadings and proceedings.’ ”

In the ease of Wade et al. v. Mitchell, 14 Okla. 170, the court said:

“It is the duty of the complaining party to make an affirmative and' conclusive showing of error. This cannot be done by a partial or incomplete transcript. Our statute provides for two methods of bringing a cause to this court. The petition in eiror must have attached to it either a transcript of the proceedings below, or a case-made. If the case is presented for review upon a transcript, it must be a complete transcript of the record in the trial court. If the case is presented by a case-made, then the party presenting the case may incorporate only such portions of the record as will present to the appellate court the errors complained of. By the case-made method the cause may be presented upon a short record, but by the transcript method no authority exists for omitting any' of the proceedings otf1 the trial court which are properly parts of the record, and the certificate to the transcript must show that it contains a full, true and complete transcript of all the papers and proceedings-in said cause, as the same appears on file or of record in his office.”

The motion of the Attorney General to dismiss the appeal is therefore sustained.

DOYLE and RICHARDSON, Judges, concur.


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    JOSEPHINE CARROLL v. STATE.
    No. A-226.
    Opinion Filed November 23, 1910.
    BAWDY HOUSES — Maintenance—Evidence — General Reputation of House. In prosecutions for keeping- a house of ill fame it is competent to introduce evidence of the general reputation of the house in the neighborhood in which it is- situated, as to its being a place where lewd and lascivious persons of both sexes congregate for the purpose of unlawful co-habitation or sexual intercourse.
    ('Syllabus by the Court.)

      Appeal from Canadian County Court; E. L. Fogg, Judge.

    Defendant was convicted for keeping a house of ill fame, and fined one hundred dollars. Defendant appealed.
    Affirmed.

      B. B. Forrest, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   EURMAN, Presiding Judge.

The counsel for the defendant relies upon the following assignment of errors:

“(1) The evidence does not establish sufficient facts to constitute a public offense. (2) No crime is proved by the evidence. (3) The. verdict is «against the law. (4) The judgment is contrary to law. (5) The court erred in refusing to direct the jury to acquit the defendant. (6) The court erred in overruling the motion of the defendant for a new trial.”

These may all be considered under the general objection that the evidence is not sufficient to support the verdict.

C. E. Gunn testified that the defendant paid rent upon and occupied the building in which the offense is alleged to have been committed at the date of the alleged offense.

Mr. Chambers testified as follows:

■ “Direct examination by J. "W. Clark: Q. State your name to the jury. A. L. A. Chambers. Q. You are sheriff of this county, Mr. Chambers? A. Yes, sir. Q. And were on the 19th day of December, 1908? A. Yes, sir. Q. Are you acquainted with the supposed rooming house that was being operated at that time by Josephine Carroll? A. I was. Q. You may tell the jury whether or not you had occasion to go to her place on or about the 19th day of December, 1908 ? A. I did. Q. Who did you find in possession? A. Mrs. Carroll. Q. Who, if anyone, else did you find there? A. Barbara Leigh, Louise Voss, or Aldrich, whatever her name is, and Jennie McElliott, Pearl Snowden, and a little later Beulah. Edwards came. And there was— I have forgotten the .gentleman’s name, there was one gentleman in room 1, and a couple of gentlemen that I didn’t keep their names that were in another room. And Bill Williams came up presently. Q. Bill have a room there at that time? A. He did. Q. What was the number of the' room ? A. I think it was 5, I’m not sure about the number. Q. You may tell the jury whether or not there was anyone else occupying the same room at that time with Mr. Williams? A. There was. Q. Who was it? A. Louise Voss or Al-drich. Q. You may state, Mr. Chambers, if you know, the reputation in the community in which the inhabitants of that building reside and have resided as to — • that is, the general reputation as to being lewd and lascivious in character? By Mr. Eorrest: Objected to, witness not competent to testify. Bv the Court: Sustained. Q. Mr. Chambers, how long have you known— how long have you lived in El Beño? A. Pretty near two years. Q. How long have you known Beulah Edwards? A. About the same length of time? Q. How long have you known Barbara Leigh? A. Eight' or nine months. Q. How long have you known Louise Voss or Aldrich, as her name may be? By Forrest: Objected to. Q. Are you acquainted with their general reputation in the community in which they live, do live at this time as to being of lewd and lascivious character? By Forrest: Objected to as immaterial. By Court: Overruled. Exceptions. A. I think I am. Q. Is that reputation good or bad? A. Bad.”

This witness further testified, over the objection of the defendant, that the general reputation of the place kept by the defendant, in the community in which it was located, as to being a place where lewd and lascivious persons of both sexes congregated-for the purpose of unlawful co-habitation or sexual intercourse, was bad.

II. II. Mayfield testified as follows:

“Q. State your name to the jury. A. II. II. Mayfield. Q. Mr. Mayfield what official position if any were you holding during the month of December, 1908? A. Deputy sheriff. Q. Were you acquainted at that time with the building occupied by this defendant here at that time? A. Yes, sir. Q. You may state where that building is— where it is located— was located at that time during— on or about the 10th day of December, 1908? A. She is in the second story of what is known as Gunn building, located on Rock Island Ave., second door north from Woodson street. Go up stairs over the Waring Seed Store. Q. She occupied the upstairs, the upper portion of the building? A. Yes, sir. Q. You may state whether or not you had occasion to visit that place on or about the 19th of December, 1908? A. Yes, sir. Q. Who did you go there with? A. Mr. Chambers and Mr. Earnest, I believe. Q. Who did you find in charge of the building? A. Josephine Carroll. Q. Who,’ if anyone else, was there ? A. There was Louise Voss, Barbara Leigh, Pearl Snowden, and the McEUiott girl, and Pearl Snowden and a girl by the name of McEUiott, I believe that is her name. That is the name she gave. Q. Ask you to state if Beulah Edwards was there? A. Yes, sir. Q. How many rooms was in that rooming house ? A. Eight or nine — some where along there. Q. You say that these six girls whom you have named were there at that time ? A. Yes, sir. Q. You know of anyone else that was there? A. There was some drummer up there, and then Bill Williams came up there after we were there awhile. Q. Is Bill Williams:— you are acquainted with Billy Williams. A. Yes, sir. Q. Is he a married or single man? A. A single man. Q. Did Will have a room up there? A. He did. Q. Was he going to his room? A.- He said he was. Q. Did you find any of his things up there? A. Yes, sir. Q. What did you find? A. His trunk and his clothes and a suit case'. Q. In what room? A. I ain’t sure, but I think No. 4. Q. You may state if you know whether there was anybody else occupying that room or not? A. Louise Voss was occupying it. Q. Find any of her paraphernalia in there? A. Yes, sir. Q. What did you find of her’s in there? A. Trunk and her clothes. Q. How long have you known Beulah Edwards ? A. Something like six months or nine months, something like that. Q. How long have you known Barbara Leigh? A. First time I saw her was about a month before this, something like that, perhaps two or three months. Q. How long have you known of her? A. Well, that is all I have known of her. Q. How long have you known of Louise Voss ? A. Known of her about two or three years. Q. Are you acquainted with those girls’ reputation in the community in which they live as to being of lewd and lascivious character? A. Yes, sir. Q. Is that reputation good or bad? A. Bad. Q. How long have you known of this rooming house run by Josephine Carroll? A. Along about the latter part of November or the first of December, 1908. Q. Are you acquainted with the general reputation of the inmates of the house and those who visit there as to being— I mean of both sexes, as to being of lewd and lascivious character? A. Yes, sir. Q. Deputation good or bad? A. Bad.”

Robert Aycock testified:'

“I went up there, went to the door, rapped on the door there, and there was another lady came to the door and I asked whether the lady of the house was in and she called her out and this lady came, and I asked if she had any rooms to rent and she said she did, and I asked her what the price of the rooms was, and she said 50c a night. And I asked her how they were furnished. And she said 'just furnished rooms,’ and I said 'is that all,’ and she said 'No, you can have a girl if you want her.’ She said, 'Do you want a girl?’ I told her if I got a room I did, like that, but that wasn’t what I was after. And so she wanted to know what it was that I wanted and I told her I wanted some whiskey, and she said she didn’t have any whiskey at all, and she said 'You want me to call that girl out for you?’ I told her 'No,’ and she says two or three times should she call the girl out for me, and I told her no, she need not, that I wanted some whiskey, and she said she didn’t have any whiskey. Q. About when was that? A. That was some where— must have been in October.”

Some courts hold that in cases of this kind the reputation of the house kept and of its inmates is not admissible in evidence, but upon reason and the weight of authority we cannot agree with this conclusion. The general rule is that hearsay evidence is incompetent to establish any specific fact which is in its nature susceptible of being proven by witnesses who speak from their own knowledge. None save the most abandoned and untrustworthy could be induced, voluntarily; to testify to facts within their own knowledge; which would sustain the charge in this case. In its nature the fact at issue in this case is not susceptible of proof by the testimony of witnesses of their own knowledge. Proof by general reputation is not only necessary, but it is far more reliable and satisfactory than the evidence of witnesses who would testify to their own discredit and shame. It is inconceivable that any house would acquire the general reputation in its neighborhood of being kept for the purpose of prostitution if in fact it was not kept for that purpose. The general reputation of a house in its neighborhood is the result of the conduct of the person who -keeps it, and there is no< injustice in holding such person responsible for this reputation. In fact in cases of this kind the reputation of the house is its advertisement; and is a source of profit to its keeper. We fully agree with Mr. Wigmore, when in speaking of this class of cases, he says:

“Having regard to the circumstances from'which such a reputation -arises, and the difficulty of obtaining other evidence in the ordinary way from unimpeachable witnesses, it seems unquestionable that reputation should be admitted as trustworthy and necessary evidence.” (Vol. 2, page 1621, Wigmore on Evidence.)

But be this as it, may, our statute settles this question against the contention of appellant. Wilson’s Oklahoma Statutes, sec. 2301, is as follows:

“Every person who keeps any bawdy house, house of ill fame, of assignation or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene or indecent purpose, is guilty of,a misdemeanor.”

From this it is seen that the “ill fame” of the house is an, element of the offense. Further discussion or citation’of authority is unnecessary. The evidence objected to was properly admitted by the trial court and fully sustains the verdict of the jury and the judgment of the court-. -

The. judgment of the trial court is in all things affirmed.

DOYLE and RICHARDSON, .Judges, concur.