source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    WALT COOK v. STATE.
    No. A-1570.
    Opinion Filed June 3, 1913.
    (132 Pac. 507).
    1. APPEAL — Insufficiency of Evidence. Unless the evidence is so slight that the court below would be justified in directing a verdict for the defendant, the judgment will not be reversed for insufficiency of the evidence.
    2. EVIDENCE — Circumstantial Evidence — Question for Jury. Circumstantial evidence being competent, its weight is for the jury alone.
    (Syllabus by the Court.)

      Appeal from Garfield County Court; Winfield Scott, Judge.

      Walt Cook was convicted of violating the liquor law, and appeals.
    Affirmed.

      W. O. 'Cromwell, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Jos. L. Hull, of counsel,) for the State.
   DOYLE, J.

Plaintiff in error, under an information charging the unlawful sale of intoxicating liquor, was convicted and sentenced to be confined’ for six months in the county jail and to pay a fine of $300, and in default of the payment of said fine he should be imprisoned for an additional period until the same was satisfied according to law. The judgment and sentence was entered October 7, 1911. An appeal was taken from the judgment by filing in this court January 5, 1912, a petition in error with case-made.

The first specification of error is to the effect that the verdict of the jury is contrary to the evidence, and that the court erred in overruling plaintiff in error’s request that the jury be directed to return a verdict of not guilty.

Unless the evidence is so slight that the court below would be justified in directing a verdict for the defendant, the judgment will not be reversed for insufficiency of the evidence.

Only three witnesses testified in the case.

Howard L. Eeynolds, the first witness called, testified In substance as follows: That he and John F. Burford on the 29th day of June, 1911, went into the Crazy Pool Hall at 215 South Grand avenue, Enid. That the plaintiff in error was there playing pool. In one corner of- the room was a door that led to the cellar, and in front of this door a man was standing. Witness and his companion went to this door, and the man standing there looked towards the plaintiff in error, Cook, and Cook nodded to him. The man then opened the door and let' them down into the basement, where they found a bar. That they bought two bottles of beer -from the man behind the bar and paid him for it and drank it. After which they left. He further said he was a detective and purchased the beer for the purpose of procuring evidence.

The second witness, 'John F. Burford, testified to the same facts.

W. J. Boberts testified that the Crazy Pool Hall was Cook’s place of business, and on the window of the pool room was the name, “W. M. Cook.”

There was also introduced in evidence Exhibit A, being a certified copy of the record of the collector of internal revenue, showing payment of the special tax required of liquor dealers by the United States for the fiscal year by W. M. Cook, place of business 215 South Grand avenue, Enid.

While the evidence connecting the plaintiff in error with the sale was wholly circumstantial, yet, as to time, place, means, and conduct, it concurs in indicating his guilt. We think that -it was sufficient to sustain the verdict. It is true the facts and circumstances might have been explained; but, being unexplained and uncontradicted, the jury were entitled to draw the logical inference that the plaintiff in error was the proprietor, and that the sale was made at his direction. It is a matter of common knowledge that, in the unlawful sale of intoxicating liquor, the real proprietor of the place and the owner of the liquor seldom makes the actual • sale. In this case the evidence was sufficient for the jury, and, they having drawn the logical deductions from the facts and circumstances as proved by the state, their verdict and the conviction thereon will not be disturbed.

Second. It is also claimed that the court erred in admitting in evidence the certified copy of the records of the collector of internal revenue for the district of Oklahoma, which purported to show that the plaintiff in error had paid the special tax required of liquor dealers by the United States, on the ground that it was incompetent, irrelevant, and immaterial, for the reason the charge in this case is a direct sale of liquor and not having possession of liquor with intent to sell the same in violation of the prohibitory law.

We think the objections were properly overruled, as the evidence was clearly competent as _ tending to show that the plaintiff in error was the proprietor of the place in question. As to the other alleged errors, it is enough to say that we think no error was committed that requires a reversal of the judgment.

The judgment is affirmed.

ARMSTRONG-, P. J., and FURMAN, J., concur.


author: FURMAN, J.

text:
    BERT FILES v. STATE.
    No. A-1571.
    Opinion Filed June 3, 1913.
    (132 Pac. 509.)
    1. INTOXICATING LIQUORS — Prosecution—Evidence. For evidence fully sustaining a conviction for maintaining a place where intoxicating liquors were received and kept for the purpose of selling-the same, see testimony in this case.
    2. FINES — Imprisonment on Non-payment. Where a defendant has-, heen found guilty of violating the prohibitory liquor law and his punishment has been assessed at a fine and imprisonment, the court has power to enforce the payment of such fine by the imprisonment, of the defendant.
    ('Syllabus by the Court.)

      Appeal from Garfield County Court; Winfield Scott, Judge.

    Bert Files was convicted of violating the prohibitory liquor-law, and he appeals.
    Affirmed.
    Appellant, was found guilty in the county court of Garfield county for violating the prohibitory liquor law, and his punishment wa-s assessed at 120 days’ confinement in the county jail and a fine of $420. And it was ordered by tbe court that if such fine be not paid, the defendant be confined in the county jail of Garfield county until such fine should be paid at the rate of $2 per day.
    William J. Eoberts testified: Th"at he lived at 820 West Elm street, Enid, Okla., and had lived in Enid 15 or 16 years; that he was a state enforcement officer, and on the 15th day of July, 1911, saw appellant, Bert Files, or Bob Files, in his place of business at 109 East Randolph street, Enid. That Mr. Chaney and the county attorney were there.
    “When we entered, .the defendant was behind the counter. I had a search warrant, and there was' a partition across the room and a door in the west side of the partition. I told him to open that door, and he pulled a string that ran over by the counter and the door opened. I searched and found a lot of whisky and beer bottles, pop bottles, pop, and an ice chest. The ice chest was back of the partition, near the south end of the counter. The ice chest had a secret compartment. In the middle was put the ice, and when the outside rim was raised we found some whisky in it. We also found in this little room corkscrews, pullers, whisky glasses, and bottles. The defendant was searched, and a bottle of whisky was taken oil him. A half gallon of whisky was found under a platform. near the front of the building. While we were searching, and in the presence of the defendant, a young man came in and said to me, ‘Can I get a half pint?’ I says, T don’t know you,’ and he says, ‘I have got it here 50 times, and the defendant spoke up and says, ‘Hell, that is the state enforcement officer you are talking to.’ We found a United States internal revenue stamp on the wall, behind a calendar. The whisky was destroyed.”
    Pete Chaney testified: That he had lived in Enid 18 years and was an enforcement officer. That he was acquainted with defendant’s place of business at 109 East Randolph street, Enid. Helped make the raid.
    “I went to back door, and Mr. Roberts and Mr. Harmon to front door. The back door was locked, and after two or three minutes I got in, and there wasn’t anybody but Mr. Roberts, Mr. Harmon, and the defendant in there. We searched the place” to see what we conld find, and for some time didn’t find any whisky; but we searched more thoroughly, and finally there was an ice box that had two tops, one in the center and a ring all around, and I got hold of that ring and pressed it open, and there was two walls and possibly a dozen bottles in that false partition, and then I found a half gallon bottle under the north window in under the show case among some papers, and there was .a board there, and I pulled it out, and there was a bottle under it, and we found quite a number of empty whisky bottles, a cork puller, and cigarette papers, and on the defendant we found a half-pint bottle of whisky about a third full and a whisky glass.”
    Charles N. Harmon testified as follows:
    “I am county attorney of Garfield county, and on Julj 15, 1911, helped search defendant’s place at 109 Bast Randolph street, Enid, which was general known as the Alamo Cigar Store.”
    This witness’ testimony was not materially different from that of Roberts and 'Chaney as to what was found in defendant’s place. Witness also testified that defendant after-wards moved his business to 120 East Main street, Enid.
    The state also introduced a certified copy of record showing the payment of special tax required of retail liquor dealers by the United States government. This license covered 109 East Randolph and also 120 East Main to which it was transferred.
    The appellant offered no evidence whatever.

      W. 0. Gromivell, for appellant.

      Smith G: Maison, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). First. The evidence makes out a plain case against appellant of keeping and maintaining what is commonly called a “whisky joint.” The room was fitted up .as such, the necessary fixtures and utensils were there, and appellant was possessed of a United States government license to retail intoxicating liquors. We do not see how a stronger or plainer case could be made. The various objections offered to the admission of the testimony are purely captious and are without merit. The fact that there was no proof that ■ a sale .of prohibited liquors had been made in the place kept by appellant is immaterial. Such evidence was not only unnecessary, but would have been admissible only to show the purpose for which the place was kept and maintained. He was not prosecuted for selling intoxicating liquors. Iiis offense consists in keeping and maintaining a place at which such liquors were exposed for sale. The selling of such liquors would be an entirely different and separate offense.

Second. The right of the court to require the confinement of appellant in the county jail in the event he failed to pay the fine is questioned. This has already been settled by the previous decisions of this court in an elaborate opinion by Judge Doyle, adversely to the contention of appellant. See Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20.

Without disrespect to counsel for appellant, to our minds it seems the utmost and wildest folly to contend that the Legislature intended that imprisonment may be had _ for fine, where fine alone is assessed, and not where imprisonment is also assessed. Imprisonment for nonpayment of the fine is the legal means of enforcing such judgment just as imprisonment will follow the nonpayment of a fine for contempt of court. Brock v. State, 22 Ga. 98; Shiver v. State, 23 Ga. 230; In re Boling, 31 Ill. 88; Brownbridge v. People, 38 Mich. 751; State v. Peterson et at., 38 Mich. 143, 36 N. W. 443; Berkenfield v. People, 191 Ill. 272, 61 N. E. 96. Our statute is but a re-enactment of the common law as to imprisonment for nonpayment of fine, and the practice at common law was to imprison for fine even if imprisonment as a part of the punishment also was imposed in the judgment. Beecher’s case, 8 Coke, 58; Fischer v. Hayes (C. C.) 6 Fed. 63; U. S. v. Robbins, Fed. Cas. No. 16,171.

As to the guilt of appellant there can be no question. The evidence is conclusive that he willfully and deliberately violated the law without the least shadow of legal justification or excuse. From the testimony it is plain that appellant is a confirmed and adroit criminal. Snch characters must be taught that they cannot violate the law with impunity. The punishment of appellant has already been too long delayed.

The judgment of the lower court is in all things affirmed. The clerk of this court will issue the mandate at once, with directions to the lower court to proceed to enforce its judgment without further delay.

ARMSTRONG, P. J., and DOYLE, J., concur.


author: FUKMAN, J.

text:
    WILL HESS v. STATE.
    No. A-1593.
    Opinion Filed June 4, 1913.
    (132 Pac. 505.)
    1. APPEAL AND ERROR — Briefs—Review. Where an appeal is taken and. no briefs are filed on behalf of appellant pointing out the specific errors relied upon, this court will not do more than read the evidence to see if it supports the verdict, and examine the record for jurisdictional errors; and, if none such appear, the judgment will be affirmed.
    2. SAME — Regularity of Proceedings — Presumption. This court does not act upon the presumption that everything which was done in the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments; but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until it is shown that such is not the case. The appellant assists in the selection of the jury, and he thereby vouches to this court for their intelligence, fairness, and integrity. Being thus recommended, the court must accept the verdict of the jury and the judgment entered thereon as being correct, unless the appellant clearly points out errors committed by the judge or jury.
    3. SAME — Exceptions to Instructions — Sufficiency. General exceptions to instructions will not be considered upon appeal. The.specific objection relied upon must be called to the attention of the trial court, so that the error, if any, may be corrected and the possibility of injury avoided, otherwise the error, unless fundamental, will be held to be waived.
    (Syllabus by the Court.)

      Appeal from District Court, Choctaw County; A. H. Ferguson, Judge.

    Will Hess was convicted of murder, and be appeals.
    Affirmed.
    ' Richardson & Warren, for plaintiff in error.

      Smith G. Matson, Asst. Atty. Gen., for the State.
   FUKMAN, J.

The appeal in this canse was perfected by filing the transcript of the record in this court on the 15th day of January, 1912. But counsel has never appeared in this court or filed a brief in behalf of appellant. When the case was reached for submission the Assistant Attorney General stated that he had received a letter from some attorneys asking that they be granted time in which to file a brief. We cannot comply with this request, in the absence of a showing why briefs were not filed within the time required by the rules of this court. Counsel have had nearly eighteen months in which to file briefs, but it appears that they have been busy about something else. When lawyers take appeals to this court it is their duty to pay some attention to their business. They cannot say to the court, “Wait until I have nothing else to do and then I will file a -brief.” This practice will not be tolerated for a single moment. Our ‘ docket is already crowded with cases, and we are now worked to the limit of human endurance. To sanction such practice as that requested would be to demoralizé our entire docket.

, We have so often passed upon the necessity of filing briefs that if would seem that at least those persons who profess to be lawyers should know what the rules of this court are and would conform to them. We dislike to have to discuss this question again; but, as counsel appear either to have forgotten or never acquainted themselves with, the practice in this court, we will quote from the case of Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061, as follows:

“We are at a loss to understand why it is that counsel take an appeal to this coiirt and fail to prosecute said appeal by filing a brief pointing out the specific errors upon which they rely. Every facility for filing briefs on the part of those who take appeals is offered by this court., They can be prepared without expense and with very little labor, as we permit typewritten briefs to be filed. Counsel must know that in cases of this kind, where an appeal is taken and no brief is filed, except in case of the gravest character, the court will not examine the record for other than jurisdictional errors appearing therein. This rule has always been enforced in Oklahoma. See Wellman v. Territory, 2 Okla. 152, 37 Pac. 1066; Steil v. Territory, 4 Okla. 4-97, 46 Pac. 1117; Territory v. Brady, 4 Okla. 514, 46 Pac. 573; Foust v. Territory, 10 Okla. 214, 61 Pac. 923; While v. Territory, 11 Okla. 172, 65 Pac. 835; Hiatt v. Territory, 14 Okla. 363, 78 Pac. 81; Manning v. United States, 14 Okla. 604, 78 Pac. 92; Picklesimer v. Territory, 15 Okla. 193, 79 Pac. 777; Hance v. State, 2 Okla. Cr. 124, 100 Pac. 260; Lightle v. State, 2 Okla. Cr. 334, 101 Pac. 608; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Price v. United States, 2 Okla. Cr. 449, 101 Pac. 1036, 139 Am. St. Rep. 930; Elericlc v. State, 2 Okla. Cr. 701, 103 Pac. 1038; Belt v. State, 2 Okla. Cr. 705, 103 Pac. 1069; Burgess v. State, 3 Okla. Cr. 127, 104 Pac. 916; Pulliam v. State, 3 Okla. Cr. 141, 104 Pac. 919; Meeks v. State; 3 Okla. Cr. 391, 106 Pac. 533; House v. State, 3 Okla. Cr. 467, 106 Pac. 806; Teels v. State, 3 Okla. Cr. 646, 108 Pac. 415; Stack v. State, 4 Okla. Cr. 1, 109 Pac. 126; Starr v. State, 4 Okla. Cr. 128, 111 Pac. 668; Walling v. State, 4 Okla. Cr. 414, 111 Pac. 1001; Simmons v. State, 4 Okla. Cr. 489, 112 Pac. 35; Bonner v. State, 4 Okla. Cr. 639, 111 Pac. 1020.
“Previous to statehood, if briefs were not filed in the United States Court of Appeals of the Indian Territory within the time allowed by the court, the appeal would be arbitrarily dismissed. See Poe v. United States, 6 Ind. T. 142, 89 S. W. 1020.
“In the case of Knox Simmons v. State, 4 Okla. Cr. 489, 112 Pac. 35, Doyle, .Judge, speaking for this court, said: ‘The plaintiff in error has not been represented by counsel on his appeal, although he was ably represented and well defended upon the trial in the court below. No briefs have been filed nor argument made in this court. On May 14, 1910, the Attorney General filed a motion to affirm the judgment for want of prosecution. It is apparent that this appeal -was taken merely for the purpose of. delay. Counsel have no right to appeal simply for the purpose of delay nor unless they believe there is some ground for reversal; and if there is any reason for appealing even though doubtful and inconclusive, it should be presented to the court for consideration, or some sufficient reason given for the failure so to do.’
“There are three good and sufficient reasons which support the rule requiring that briefs must be filed: First. The Attorney General’s office is overcrowded with work, and it is unfair to that department, already burdened as it is, to be called upon to file a reply brief for the state when no brief has been filed on the part of appellant. Every presumption must be indulged in favor of the regularity of the proceedings of the lower court, and he who complains of a want of such regularity has the burden of showing where such irregularity exists, and how he has been deprived of a substantial right thereby. When no such showing is made, the judgment of the trial court should be. affirmed, unless it appears upon the face of the record that the court was without jurisdiction. Second. It is unfair to the public, when our docket is already crowded with cases which should be disposed of, to 'require the judges of this court to spend time in examining the record in each case to see if errors were not committed by the trial court, although none are complained of. Third. It is unfair to the members of this court, who are already burdened with work to the limit of human endurance, to expect its members to search records for errors, either real or supposed, of which counsel for appellant do not complain, and -of which they think so little that they have not taken even the time and trouble to call the attention of the court to them. Where counsel perfect an appeal and Tail to file briefs, it is equivalent to saying to the members of this court, T have taken this appeal only for the purpose of delay,’ or, ‘I do not know it, and I want you to get out a search warrant and see if you can find any.’ This is just what we understand when a cause is submitted and we find that briefs have not been filed. Owing to the great multiplicity of appeals that have been taken, we are now over one year behind with our work, although we give it our entire and undivided time and attention. We cannot act in the double capacity as counsel for parties and as a court.
“This court does not act upon the presumption that everything which was done in the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments; but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until it is shown that such is not the case. The appellant assists in the selection of the jury, and he thereby vouches to 'this court for their intelligence, fairness, and integrity. Being thus recommended, the court-must accept the verdict of the jury as being correct, unless the appellant clearly points out errors committed by the judge or jury. It is the duty of this court to decide questions properly submitted to it; and, when no briefs have been filed, except in cases of the gravest character, we will not do more than examine the record for jurisdictional errors.”

The information in this case is correct. The evidence clearly establishes the guilt of appellant.

/We have read the instructions, and we find no fundamental errors therein. When the instructions of the court were read to the jury, counsel for the defendant stated that they would reserve an "open exception to the instructions of the court.” The attorneys who represented the defendant in the trial court appear to have been as careless about their exceptions to the instructions of the court as they have been about filing briefs in this court. It has been repeatedly held that where counsel desire to reserve an exception to an instruction • they must point out the particular paragraph of the instructions objected to and. state the grounds of the objection, so that the trial court may have an opportunity to correct the error complained of. A general exception will not be considered for a single moment, as it is unfair to the judge and the opposing counsel. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Braziel v. State, 5 Okla. Cr. 540, 115 Pac. 618. If this court were to tolerate practice of this kind the result would be to encourage carelessness upon the part of counsel. -

We find no material error in the record. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG, P. j., and DONLE, J., concur.


author: HOYLE, J.

text:
    B. L. HOGUE v. STATE.
    No. A-1599.
    Opinion Filed June 5, 1913.
    (132 Pac. 511.)
    1. INDICTMENT AND INFORMATION — Amendment. By leave of court, an information may be amended, as to matters of substance or form, after a plea of not guilty has been entered, and before the trial is begun.
    2. INDICTMENT AND INFORMATION — Amendment—Matters of Form. By leave of court, an information may be amended, as to matters of form, after the jury has been impaneled, when the same can be done without prejudice to the substantial rights of the defendant.
    (Syllabus by the Court.)

      Appeal from, Le Flore County Court; P. C. Bolger, Judge.

    B. L. Hogue was convicted of violation of the prohibitory law, and appeals.
    Affirmed.

      Tom W. Neal, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Monroe Osborn, for the State.
   HOYLE, J.

The plaintiff in error was convicted of the crime of having unlawful possession of intoxicating liquors with intent to sell the same, and was sentenced to be confined in the county jail -for a term of 30 days and that he pay a fine of $50. To reverse this judgment an appeal was taken.

The assignments of error are in effect as follows: That the trial court erred in permitting the information to be amended after the jury had been impaneled and testimony taken on the trial; and in refusing to require the information to be verified after the amendment; and in refusing to rearraign the defendant to the amended information; and in failing to reswear the jury to try the defendant upon the amended information; and in refusing the defendant a jury after the said amendment, and in compelling the defendant to accept the jury selected to try the issues under the original information, in his trial upon the amended information.

It appears from the record that the court after the first witness for the state had testified permitted the defendant to file a demurrer to the information. The original information charged:

“That said B. L. Hogue did then and there, willfully and unlawfully have in his possession about 75 gallons of spirituous, vinous, fermented, malt, and intoxicating liquors, or imitation thereof or substitute therefor, with intent to sell, the kind, character, and ingredients, of which is to the county attorney unknown.”

Upon the demurrer interposed the court permitted the information to be amended by striking out the words “or imitation thereof or substitute therefor.”

It is our opinion that the amendment was one in matter of form only.

By leave of court, an information may be amended as to matters of form after the jury has been impaneled, when the same can be done without prejudice to the substantial rights of the defendant. Rollen v. State, 7 Okla. Cr. 673, 135 Pac. 1087. There is nothing in the record which would indicate that the defendant was prejudiced by this action'of the court, and counsel do not undertake in the brief to indicate that the defendant was prejudiced thereby. -The words stricken out were mere surplusage, and for this reason the amendment as made was not one in matter of substance, and therefore could not have been prejudicial to the substantial rights of the defendant.

No error was committed in refusing to require the information to be verified after the amendment. The original information was properly verified, and the defendant’s arrest on the warrant issued thereon was therefore legal. Neither did the court err in refusing to rearraign the defendant on the amended information, nor was it necessary to reswear the -jury. It was not such an amendment as would alter the condition of the case, and the trial court properly ordered the case to proceed before' the jury selected and sworn to try the issues under the original information.

We see no error in any of the rulings of the court.

The judgment is affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    W. A. HIGH v. STATE.
    No. A-1598.
    Opinion Filed June 5, 1913.
    (132 Pac. 509.)
    APPEAL — Sufficiency of Evidence. Where the verdict of the jury has been approved by the trial court, and there is evidence to sustain the verdict, the judgment will be affirmed, unless it is apparent that injustice has been done.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Dayson, Judge.

    W. A. High was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Al. J. Jennings, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, for the State.
   DOYLE, J.

Plaintiff in error was convicted in the county court of Oklahoma county on an information which charged that he did have in his possession intoxicating liquors with the unlawful intent to sell the same, and was sentenced to be. confined in the county jail for a period of 60 days, and that he pay a fine of $100. The judgment and sentence was entered on the 12th day of December, 1911. An appeal was perfected, and the only assignment of error is that the evidence is insufficient to sustain the verdict.

The proof on the part of. the state shows that D. Dun-ham, a police captain, with R. Frazier, a policeman, went into the place at 101 West Reno street, Oklahoma City, and searched the premises for intoxicating liquors, and found 50 or 60 bottles of beer on ice, concealed in the wall behind a water cooler. The defendant was present in charge of the premises, and they arrested him. The defendant as a witness in his own behalf testified that he had nothing to do with the place, except that the proprietor liad asked him if he would stay there until he got back, as he was going out for a few minutes; that he did not know it was a joint, and that no booze was sold there while he had charge of the place. The sufficiency of the evidence was a question purely for the jury, and while this court has the power to interfere, that power should not be exercised, unless it is apparent that injustice has been done.

The jury, under the law, are the sole judges of the credibility of the witnesses and of the weight to be given to the evidence of each witness who testifies in the case. They had the witnesses before them, and could see their manner of testifying, and they no doubt, in determining the truth, took into consideration all the attending circumstances of the case. For anything we can know, the manner and conduct of the defendant when on the stand may have been such as to satisfy the jury that he was unworthy of belief. Where the verdict of the jury has been approved by the trial court, this court will not disturb the judgment, where'there is evidence to support the verdict, unless it appears to be clearly wrong.

The judgment of the county court of Oklahoma county 'is affirmed.

ARMSTRONG, P. J.,. and FURMAN, J., concur.


text:
    F. L. THOMPSON v. STATE.
    No. A-1591.
    Opinion Filed June 7, 1913
    (132 Pac. 695.)
    1. TRIAL — Evidence—Corroboration of Accomplices — Direction of Verdict. A verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and to the evidence; for this reason the defendant’s motion to direct a verdict of not guilty should have been sustained.
    2. INTOXICATING LIQUORS — Prosecution—Evidence—Reputation of Premises. Upon a trial under an information charging that the defendant did have the possession of intoxicating liquors with the intention of violating provisions of the prohibitory law, evidence of the general reputation of his home or barn is incompetent to prove the charge.
    (Syllabus by the Court.)

      Appeal from Pottawatomie County Courtj Boss F. Loclcridge, Judge.

    F. L. Thompson was convicted of violating the prohibitory law, and appeals.
    Reversed.
    P. 0. Cassidy and E. D. Beasor, for plaintiff in error.

      •Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Monroe Osborn, of counsel), for the State.
   DOYLE, J.

The plaintiff in error was convicted upon an information filed in the county court of Pottawatomie county on the l‘5th day of August, 1911, which charged that:

“F. L. Thompson did on or about the 12th day of August, 1911, unlawfully have the possession of whisky and alcohol with the intent then and there unlawfully to sell the -.same.”

October 28, 1911, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for 30 days and to pay a fine of $200. To reverse the judgment the defendant perfected an appeal by filing in this court January 20, 1912, a petition in error with case-made.

The assignments of error are in effect as follows: First. That the court erred in overruling the defendant’s motion to strike the information from the files for the reason that, said information was entitled in the superior court, and the further reason that said information .gave the “superior court” to know and be informed that the defendant had committed the crime of unlawfully having in his possession spirituous liquors with intent to- sell, etc., and in permitting the county attorney to amend said information by inserting “county” wherein the word “superior” occurred in said information; and that the court erred in permitting the county attorney to indorse upon the information names of four witnesses, after the jury had been impaneled and sworn to try the case, over the defendant’s objection; and that the court erred in admitting incompetent, irrelevant, and hearsay evidence on the part of the state, and in excluding relevant and competent evidence offered by the defendant; and that the court erred in refusing to instruct the jury not to consider improper remarks of the county attorney in addressing the jury; and that the verdict is contrary to law and to the evidence.

From an examination of the record, the conclusion of the court is that the judgment in this -ease cannot be permitted to stand, as it is evident that the defendant did not have a fair trial. A fair trial is a legal trial, or one conducted in all material things in substantial conformity to the law. An unfair trial, especially in a criminal case, is a reproach on the administration of public justice. And in this case there seems to have been a careless disregard of the legal rights of the defendant, not only in the manner in which the information was drawn and filed and the names of the witnesses indorsed thereon, but the trial judge permitted to be introduced incompetent and hearsay testimony for the evident purpose of attempting to corroborate the testimony of an accomplice, and allowed continuous departures from the law by the prosecuting, attorney, although he should have known that it was his duty to prevent them, even on his own motion, without suggestion from the defendant’s counsel.

The only testimony which in any manner tends to support the verdict was that of the complaining witness, Earl James, who subscribed his name to the information by making his mark. This witness testified that he lived at Sasakwa, but in August went to Maud, and while there was arrested and convicted of selling whisky; that he worked for the defendant in Seminole county in July, hauling ties; that on August 8th he went with the defendant to Spaulding, in Hughes county, and there the defendant received from the express office a case of whisky and a jug of alcohol and they took it to the defendant’s logging camp, and there they put the liquor in Mrs. Callie Lewis’ tent, under the bed, and a few ■days later. they took the liquor from under the bed and put it into a buggy and brought it to Maud and placed it in the defendant’s barn; and that witness took it to Truesdell’s wagon yard and sold it for the defendant on a percentage; •and that the defendant promised to take care of him if he was found guilty of selling the liquor, and told him he would ■pay his -fine and make his bond, if necessary. He admitted that he told several persons that he had been engaged in selling liquor at Bromide, but that he did not tell the truth; that he also worked with Bill English making posts for the ■defendant.

Mrs. Dickson testified that she lived at Maud. She was then ■asked:

“Q. On or about the 12th day of August, did you know what the reputation of defendant’s bam was as to being a place where whisky could be procured? (Defendant objects and asks that the witness answer the question ‘Yes’ or ‘No.’) A. I do not know whether I could answer it by saying ‘Yes’ •or ‘No,’ but I have heard it was.”

Mrs. Sam Hall testified she lived at Maud, and the record •shows her testimony as follows:

“Q. I will ask you to state, Mrs. Hall, if you know what the general reputation of the Thompson barn in the town of Maud was on or before August 12, 1911, as to being a place where whisky could be procured? A. I reckon it was from all appearances. Q. Do you know the reputation? A. All that I know is that I saw this boy going to and coming from Mr. Thompson's barn. Q. Which boy do you have reference to? A. Earl is his first name; I do not know his other name. (The defendant moves to strike out the answers of the witness. Motion overruled by the court, and the defendant excepts.”)

Gus Jones testified that he bought a bottle of whisky from Earl James at the Truesdell’s wagon yard on August 12th. He was then asked: “Q. Do you know the reputation of the Thompson barn as to being a place where whisky could be procured?” and answered, “No, sir.”

Elzie Lewis was asked the same question and answered, “No, sir.”

Several other witnesses were asked if they knew the general reputation of the • defendant’s barn as to being a place where whisky could be procured, and all answered that they did not.

Louis Eidson testified: That he was city marshal at Maud and arrested Earl James for selling whisky, and searched the defendant’s barn but did not find any whisky. That the barn had the reputation of being a place where whisky could, be procured.

Marshal Waldridge testified that he had lived at Maud' for five years, and was convicted of selling whisky and served his sentence by working on the roads. He was then asked if he knew the general reputation of Thompson’s barn and answered, “No.” He was then asked if he ever saw any whisky at the barn and said, “Yes,” a good while ago; that he and a fellow named Spears went down an alley to the-back of the barn and Spears reached his arm under the barn, and got some whisky; that the defendant Thompson was not in Maud at that time. On cross-examination he further stated that he and the complaining witness, Earl James, served' sentences together, and while they were in the convict camp-Earl James told him that the whisky belonged to him and Bill English, and was carried to Maud by English, but that: if Thompson did not get him out of the trouble he was going to swear that the. whisky belonged to Thompson.

The state then rested, and the defendant moved the court to direct a verdict of not guilty, which motion was overruled and exception allowed.

On behalf of the defendant Mrs. Callie Lewis, the owner and occupant of the tent referred to in James’ testimony, testified that the defendant never kept any whisky or alcohol in her tent; and that she was present when the defendant and Jámes started to Maud; and that no case, box, or jug was put in the buggy.

Boy Sanders testified that he was at the logging camp and helped James hitch to the buggy, and he did not see any whisky or alcohol in the buggy, and if there was he could have seen it; that he heard Bill English say that he had some whisky and that he was going to take it to Maud and Earl James was going to help him sell it; and that old man Thompson had been kicking about him having whisky around the camp and that if he did not stop he was going to tell that it was Thompson’s whisky, and Earl James asked witness to help them sell the whisky, and said that if Thompson kicked any more about it they were going to tell- it was his whisky.

Harry Thomas testified that Earl James gave him some whisky to drink in Seminole county about the 1st of August and told him he was going to Maud to a picnic and sell whisky there; that Bill English was to bring it there in James’ father’s buggy. ' He also stated that he had often bought whisky from Earl James in Seminole county.

Verge Davis testified that on August 2d at Thompson’s logging- camp he had a conversation with Earl James and Bill English and they told him that they had some whisky and alcohol' hid across the river, and that they were going to take it to Maud to a picnic.

J. E. Hooper testified that Earl James told him about August 1st that, he had been selling whisky at Bromide, and that-he-was scouting from the officers, and that he sold whisky there to some of the boys on the ranch.

W. W. Doss and J. H. Handley testified that on August 8th, at the time Earl James testified that he and the defendant went to Spaulding, that the defendant was at Mr. Handley’s place that day.

Grace Hale testified that she was at the defendant’s home when he and Earl James drove up to the gate, and when they stopped she went out to the buggy and took out some peaches, and there was no whisky or alcohol in the buggy.

J. W. Andrews testified that he was engaged - in the cattle business and rode out of a pasture across the road from the defendant’s house, and, seeing the defendant and Earl James drive up, he stopped and talked with the defendant while he took a lap robe and a couple of coats out of the buggy, and there was no box or jug in the buggy; that Miss Grace Hale was standing in the dooryard.

The defendant testified.in his own behalf that he was 60 years of age; that he had lived in Maud for several years; that he was engaged in the timber business for 5 or 6 years; that' his camp was about 25 miles from Maud; that he never at any time received a shipment of whisky or alcohol at Spaulding; that Bill English in July was making posts for him at so much per hundred, and Earl James worked helping English; that at one time James drove a team for him a while; that his barn is built with a granary in the center and a shed on each side; that there was never any whisky in his barn that he knew of; that he never sold any whisky in his life, except that he worked a while in a drug store in the state of Alabama. On cross-examination he was asked:

“Q. You were tried there in the town of Maud by a jury on this charge? A. I suppose it was the same, charge. Q. What was the outcome of that .trial? A. I was convicted, but they would have convicted Jesus Christ. (The defendant moves to strike out the questions and answers with reference to any conviction at Maud for the reason that the court ■in which the complaint was filed had no power to render judgment. Objection overruled and exception allowed, and it is agreed that an appeal from the municipal court of Maud is now pending in this court.)”

The foregoing constitutes a fair statement of the testimony and is sufficient to indicate a few of the manifold errors committed upon the nial.

There is no evidence in the record, except that of the complaining witness, that tends to connect the defendant with the commission of the offense charged. TJpon his own testimony the complaining witness is an accomplice, and a conviction cannot be sustained upon his uncorroborated testimony.

Our Procedure Criminal provides that (section 5884, Eev. Laws) :

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

In the case of Hendrix v. State, 8 Okla. Or. 530, 129 Pac. 78, it is said the term “accomplice,” as used in section 5884, Rev. Laws, providing that no person shall be convicted of a crime on the testimony of an accomplice without corroboration, must be construed as meaning one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily cooperates or aids or assists in the commission of the crime. See, also, Head v. State, ante, 131 Pac. 937. A verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and to the evidence. For this reason the defendant’s motion to direct a verdict of not guilty should have been sustained.

In his closing argument to the jury the prosecuting attorney made the following remark: “Why didn’t the defendant bring good reputable witnesses from Maud to prove his good reputation?” The court refused the defendant’s request to instruct the jury not to consider the same. It would seem that the prosecuting attorney labored under the delusion that, if the defendant was generally reputed to be guilty of the offense charged, that would be sufficient to sustain a conviction in the absence of rebutting evidence, and his rash remark was in accordance with his views.

The evidence of the general reputation of the defendant’s barn was incompetent^' and not admissible. A man cannot be condemned on what a few of his unfriendly neighbors say of him or of his home in cases like this. Such evidence is merely hearsay, and its admission was prejudicial to the defendant. It is our opinion that the verdict of guilty is contrary to the law and to the evidence.

The judgment of the county court of Pottawatomie county is reversed, and the cause remanded, with direction to dismiss.

ARMSTRONG, P. J., and FURMAN, J., concur.


author: AEMSTEONG, P. J.

text:
    MARK TRACY v. STATE.
    No. A-1604.
    Opinion Filed June 7, 1913.
    (132 Pac. 692.)
    1. INTOXICATING LIQUORS — ‘Prosecution for Selling — Sufficiency of Evidence. A conviction for an unlawful sale of intoxicating liquor cannot be sustained where the only proof is that persons met on the street, went .into an alley, and were caught in the act of taking a drink. There must be a parting with the liquor for a consideration in order to constitute a sale.
    2. SAME — Information—Construction. An information which charges that the accused did sell, give away, and other furnish intoxicating liquors only charges a sale; the giving away and otherwise furnishing feature being surplusage.
    3. SAME — Burden of Proof — Information—Sufficiency. When a conviction is sought on a charge of giving away or furnishing intoxicating liquors, specific facts which show a violation of the prohibitory Jaw should be pleaded and proven.
    (Syllabus by the Court.)

      Appeal from County Court, Murray County; Harry W. Fielding, Judge.

    Mark Tracy was convicted of selling intoxicating liquor, and he appeals.
    Eeversed and remanded, with directions.

      Kendrick, Davis & Smith, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   AEMSTEONG, P. J.

Thé plaintiff in error,' Mark Tracy, was tried and convicted at the November, 1911, term of the county court of Murray county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence upon which this conviction is based is substantially as follows:

Dr. Dunn testified on behalf of the state that he was standing on the street corner near one of the banks in -the town of Davis, Okla., about the 16th of October, 1911; that he was talking to Deputy -Sheriff Mook; that he saw the plaintiff in error and some other person coming up the street; that they stopped a short distance away, and one of them whistled and two other persons standing near the corner went into the alley with them; that he did not see them any more; that the deputy sheriff went immediately in the direction where they were seen; that one of the parties with Tracy was named Harmon; that he did not know which one of them whistled.

Deputy Sheriff Mook testified that about 8 o’clock in the morning of the 16th of October, 1911, he was .standing on the corner near the bank talking to Dr. Dunn; that he saw Mark Tracy come up from the south going toward the north"; that there were some parties on the street going south, and when Tracy got up near the end of a building on the opposite- side of the street he held up a couple of fingers and whistled; that W. L. Harmon and another man went across in front of Freeman’s store and turned into the alley, that there was one man with Tracy at the time; that witness waited and let them go into the alley so they could not see him, and then went across the street, through a store, and back to a feed barn; that he looked into the bam and saw Tracy take a bottle out of his pocket and hand it to Harmon; that Harmon took a drink and passed it to a third party; that about this time he came upon them and took the bottle himself. The bottle was identified and introduced in evidence.

The plaintiff in error testified in his own behalf that the boys who were drinking the alcohol had all thrown in 15 cents apiece and bought it; that he had put in 15' cents to help buy it, which was all the money he had; that when Mook saw him one of the show boys had the bottle; that he never did get it into his hands; that he saw Mook in the barn, and said, “There comes the officer!” and he looked around and the officer was taking the bottle away from the boy who had been drinking.

This evidence fails to make out a case against the plaintiff in,, error on a charge of selling intoxicating liquor. The information is insufficient to charge a furnishing or giving away. See Scott v. State, 6 Okla. Cr. 492, 119 Pac. 1023.

The vigilant enforcement of the prohibitory law is to be commended, yet a conviction, in order to be sustained, must be based upon facts from which a legitimate deduction of guilt can be had. The proof does not show that the plaintiff in error sold whisky to anybody. All it does show is that two or three parties met in an alley and were drinking. There is nothing to indicate that the plaintiff in error parted with the alcohol, if’he ever had it, for a consideration. It may be that he sold the whisky as charged. If so, the state should make proof of that fact. Or, on the other hand, he may have given away or furnished the liquor in violation of law. If so, the specific facts constituting the giving away or furnishing should be pleaded as stated by this court in the Scott case, supra. If a conviction is to be upheld in this ease on the theory that the accused is guilty of a sale, then a case should be made on that theory. If the state desires to stand on the giving away or furnishing feature of the charge, the allegation in the information should conform to the rule announced in the Scott case and the proof made accordingly.

There are other errors complained of which are sufficient to justify a reversal of this judgment, but they are questions which have been repeatedly passed on by this court, and we do not feel it necessary to take time to elaborate them, as they are not likely to recur on a retrial of this cause.

The judgment is reversed, and the cause remanded, with direction to grant a new trial.

DOYLE and FUKMAN, JJ., concur.


text:
    MRS. B. PUTMAN v. STATE.
    No. A-1583.
    Opinion Filed June 7, 1913.
    (132 Pac. 916.)
    1. DISORDERLY HOUSE — Evidence of Reputation. 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 cohabitation or sexual intercourse. But such evidence alone will not support a verdict.. It must be corroborated by some other fact or circumstance tending to prove the character of the house.
    2. SAME — Prosecution—Sufficiency of Evidence. For testimony which supports a verdict of guilty of keeping a house in which lewd and lascivous persons of both sexes congregate for the purpose of unlawful cohabitation, see opinion.
    3. SAME — “Bawdyhouse.” The terms “bawdyhouse” and “disorderly house” are used interchangeably and mean the same thing.
    (Syllabus by the Court.)

      Appeal from County Court, Garfield County' Winfield Scott, Judge.

      Mrs. B. Putman was convicted of maintaining a bawdy-house, and she appeals.
    Affirmed.
    John F. Burford testified for the state that he, in company with Id. L. Reynolds, visited the house kept by appellant in the city of Enid on the 2d day of July, 1911, about a quarter 'after 9 o’clock at night. Witness then testified as follows :
    “A. Well, we walked up the stairway into this building and at the head of the stairs this lady came and met us. She met us at the head of the stairs. I asked her if she was the proprietor, and she said, ‘Yes/ I asked her if she knew of any rooming house for sale, and she said ‘Yes/ and mentioned among them the Grand avenue and one right next to the post office. I believe that I will have to look at my notes in order to remember the name of it; anyhow, she mentioned the two, and then I asked her as to her house, if she would like to sell it, and she said, ‘No’; and I asked her if she was doing well with it, and she said, ‘Yes/ I asked her, ‘How do you manage to make it pay? Do you keep any girls? She said, ‘Yes/ She pointed back to the front end of the hallway and invited us to go back. I says, ‘They seem to have company; I see a gentleman back there, a man or somebody/ She said, ‘That’s all right; that doesn’t make any difference; go back.’ I walked back and had a seat, and so did Mr. Reynolds, and this gentleman that was sitting there got up and went into the room just across the way, on the southeast corner; it was the same room I had seen this woman go into. Q. What woman are you speaking about? A. I mean the one here. We sat and talked for some little bit. There was a small girl that I was talking to, and the girl that Mr. Reynolds was talking to was rather small. While we were talking, I overheard the girl- that was talking to Mr. Reynolds insisting on him going to the room with her and heard him ask her how much she wanted to charge him, and she said, ‘$3/ and they were jollying about the price; that is about all I heard of their conversation. Q. Well, what happened to them? A. Well, after a little they got up and left and went into the second room from the front -on the north side, near the head of the stairway. Q. With reference to the room on the southeast side in which Mrs. Putman entered how far was this room in which they entered? A. Well, it was diagonally across the hall from where Mr. Beynolds and this girl entered and was facing in the direction of that, and I should judge about — • I should judge, going diagonally, it must have been pretty nearly the width of two ordinary rooms or something like that, I would judge. Q. What was the condition of her door with reference as to whether or not it was open at this time? A. I noticed— By Mr. Glasser: If the court please, the defendant objects to that question for the reason that it is a trifle leading and. suggestive, incompetent, irrelevant, and immaterial. By the Court: The question .is leading. Q. What was the condition of that door? By Mr. Glasser: If the court please, I object to the form of the question, unless he states the condition with reference to what. Q. What was the condition of that door with reference to whether or not it was open or shut? By Mr. Glasser: The defendant objects to the question put in that form for the reason it is leading. By the Court: The objection is overruled. By Mr. Glasser: To which ruling defendant excepts. Q. State, if you know ? A. The ' door was standing open every time I saw it, but at the time he went in there I wasn’t sitting where I could see. Q. All right. Go ahead and tell what next happened. A. They stayed in the room, I suppose, for 20 or 30 minutes and came out, and Mr. Beynolds cam? back and sat down, and the girl came out- di-' reetly with either a slop bucket, or something with water in it, or something like that.. During the time they were away, this little girl insisted on my going to room with her. Before they came back, the little girl went back up the hallway, and there was a girl and a man that entered the northeast room; that door was open all the while I was there. Q. Do you remember in what position they were when you saw them? A. I wouldn’t say that the man was sitting down or standing up. I rather think that he was standing up dressing and in his shirt sleeves; anyhow, he passed out of the room and I wouldn’t say where he went; anyhow, this little girl walked down the ' hallway while Mr. Beynolds was in the room with the other girl, and she said to me, ‘Why don’t you go on and spend some money with the little girl?’ I says, ‘Well, I am not feeling very, well this evening,’ or something like that; I don’t know just what it was that I said. Now, I believe that that is about all that I do know about it. Q. Did you see that girl again who was in company with a strange man who was dressing and who departed? Did you see her later, after he departed? A. After the man departed? Q. Yes, after he left. A Well, that is when I was sitting there talking to her and while the little girl was gone, she asked me why I didn’t take the girl and spend some money with her; it was this little girl; she was sitting in a chair, as I remember, just inside the door; the woman was sitting, and I think the man was standing when we came up. Q. Where did she go? Where did the girl go? A. The little girl — • I don’t know other than she went— Let me see. I was trying to get at the direction. Q. Do you know where she went? A. Yes, sir; I do. Q. Where did she go? A. She went west; she went in the opposite direction from the front, down the hallway; I don’t know where she went. Q. Was she the girl who was in the room with the strange man? A. The little girl was not; this larger girl was; the one that I talked to while the little girl was gone was the girl with the man; she was sitting inside the door, and when the man left, and this little girl walked up the hallway, she talked to me. Q. What did she say to you ? ' A. She said to me, among other things, 'Why don’t you take the little girl and spend some money ?’ Q. Who said that? A. This big girl that was in this room with this man. Q. Who had left ? A. Yes, sir. By Mr. Glasser: I think that this examination is as leading as it can be; this witness can tell what is necessary. By the Court: Tell what happened there and relate the conversation as near as you can. A. In our conversation, she remarked she was from. Oklahoma City. Q. Did you have any further conversation? A. Yes, sir; we did. Q. Can you remember what it was? A. I can; yes, sir. Q. What was that conversation? A. I says, 'Well, how do you find business up here to, or how is business here compared to what it is in Oklahoma City? Are you making much money up here? She says, T made something over $60 this past month.’ Q. This happened in what county? A. It happened in Garfield county. Q. In what state did it happen ? A. It happened in the state of Oklahoma. Q. Do you remember the date? A. I do remember it, yes. Q. What was the date? A. It was on the 2d day of July. Q. Of what year was it? A. Of the year of .-1911. Q. About what time that day was it? A. It was about 9:15 o’clock in the afternoon.”
    Ií. L. Reynolds testified for the state as follows:
    "A. Mr. Burford and I went up the stairs which went through the center of the house, and at the head of the stairs we met the defendant, and Mr. Burford engaged her in conversation. I heard Mr. Burford ask her if she knew of any rooming houses for sale, and she answered that there were one or two, she thought; she named several, I. think. Q. Do you remember what next was said? A. Yes, I remember about all the conversation that took place at that time. Q. What was the next thing that was said? A. He asked her if her rooming house was for sale. Q. Did she reply to this? A. She did. Q. What did she say in reply to that? A. She said, No’; that she was doing a pretty good business. Q. What was t]ie next that was said between them? A. Mr. Burford asked her if she depended upon her rooms for keeping up her house, or whether she kept some girls; she said, Yes’; she had three girls, and she asked us if we wouldn’t go back and talk with them. We went to the front of the building, and Mr. Burford, I think, was in the lead; there were two girls sitting there, and another man, and the man and Mrs. Putman went into the room to the south of the front there and left Mr. Burford and I there with these two girls. In a few minutes another girl came out from the north room in front and sat down, and there were the three of us there and Mr. Burford, and I was talking to one girl there and Mr. Burford was talking to the other two; I don’t know just what his conversation was with them; I was pretty busy myself, but some time during my conversation with the girl that I was talking to we were talking about Oklahoma City and different places and things in that place, and she asked me if I wouldn’t go to bed with her and go to a room with her, and I asked her how much she wanted. We finally agreed upon the price. Q. What was that price you agreed on? A. It was $2; we went to the room; this room was situated just west of the north room on the east side, and we used the second room on the north side from this end of the building. Q. Did you both go in the room together? A. Yes, sir; we did. Q. What did you do while you two were in there? A. While we were in there we had sexual intercourse and we came out; Mr. Burford and I left the building. Q. - What took place in that room? A. Why, we had sexual intercourse. Q. Do you remember any conversation which she had with you at that time? A. I could-n’t state just the conversation; I think she intimated that she had seen me in Oklahoma City, and I may have stated that I had been there. Q. She said she thought she had seen you there? A. She said, anyhow, that she thought she had seen me down there. As we were going out of the door, she said, Non are not a gentleman if you turn me in/ Q. Where did you go next? A. Well, do you mean after I left the room? Do you mean where I went next after I left the room? Q. Yes. Where did you next go after leaving the room? A. Well, I entered the hall and called for Mr. Burford. Q. Then what did you do? A. We then left the building. Q. This happened in what county, Mr. Reynolds ? A. It happened in Garfield county. Q. In what state did it happen? A. In the state of Oklahoma. Q. On what date did it take place ? A. The date was the • 2d day of July. Q. Now, about what time did it happen? A. It happened about 9:15 o’clock p. m.”
    P. Chaney testified for the state that he resided in the city of Enid for 18 years, and that he was acquainted with the house kept by appellant, and that it had the general reputation in that community of being a place where lewd and lascivious persons of both sexes congregated for the purpose of unlawful cohabitation or sexual intercourse. To this counsel for appellant objected upon the ground that the evidence was incompetent, irrelevant, and immaterial, and for the further reason that a house cannot have a reputation, which objection was by the court overruled, to which action of the court appellant excepted.
    W. J. Roberts testified for the state that he had lived in the city of Enid between 13 and 14 years and knew-the house kept by appellant and that it had the general reputation in that community of being a house where lewd and lascivious persons of both sexes congregated for unlawful cohabitation or sexual intercourse, to which evidence appellant objected upon the ground that it was incompetent, irrelevant, and immaterial, and for the further reason that a house cannot have a reputation, which objection was overruled by the court, to which action of the court counsel for appellant excepted. The state here rested.
    Appellant testified in her own behalf that she was keeper of the house in question and had kept said house for about a year, and that on the night when the house was visited by Burford and Reynolds there were only three girls there. One was named Clara Brown, who said she was from Oklahoma City; the other was a Mrs. Farris, who claimed to live in El Peno, and who said she was in Enid for the purpose of visiting her husband, who was also in the house at that time; and the other girl was named Maud, who had 'been in the employ of appellant several months as a chambermaid; that Clara Brown had previously been at the house of appellant two weeks and had come back that way on her way from Oklahoma City to Joplin, Mo.; that appellant was a married woman, who was divorced from her husband, and that she had been operating and managing rooming houses in the city of Enid for eight years; that, if any of the girls stopping at the house of appellant had ever been guilty of immoral practices there, she did not know it. Appellant did not deny the conversation of the witnesses Burford and Eeynolds, as testified to by them. Appellant did not offer any evidence as to the reputation of the house or as to the character or business of the persons who patronized it.

      Harry 0. Glasser, for appellant.

      Smith G. Matson and Jos. L. Hull, Asst. Attys. Gen., for the State.
   FURMAN, J.

Upon the authority of Carroll v. State, 4. Okla. Cr. 242, 111 Pac. 1021, and Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003, the judgment of conviction in this ease should be affirmed without a written opinion. But as a matter of respect for the earnestness and zeal which counsel for appellant has manifested in this cause, and the courtesy and ability with which he has presented his contention before the court, we will treat the questions involved as though they were of first impression.

The arguments advanced by counsel for appellant may be grouped under the general objection that the verdict of the jury is contrary to the law and the evidence. The legal question presented in the language of counsel for appellant is “that a house itself cannot have a reputation,” and that therefore the court erred in admitting the testimony that the house kept by appellant had the general reputation in that community of being a house where lewd and lascivious persons of both sexes congregated for unlawful cohabitation or sexual intercourse. We concede that the position assumed by counsel for appellant is plausible upon its face, and that it is supported by respectable authorities. Upon an examination it will be found that the cases supporting this contention are all from states in which the common-law doctrine of a strict construction of penal laws is in force, which compels a very narrow view of such matters. But this doctrine is not in force in Oklahoma. On the contrary, it is repealed by the express language of our statute which requires that all statutes shall “be liberally construed with a view to effect their objects and to promote justice.” Rev. Laws, 1909, sec. 2948. It was in obedience to this statute that in the case of Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83, this court disregarded the great weight of common-law authorities upon the question of construing statutes. Under this statute we have repeatedly held that the corpus delicti may be proven by circumstantial evidence. See George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46; Nettie V. Brown v. State, ante, 132 Pac. 359, decided at this term.

In the case of Stewart v. State, 4 Okla. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505, and in the case of State v. W. H. Coyle et al., 7 Okla. Cr. 50, 122 Pac. 243, and in the same case on motion for rehearing, 8 Okla. Cr. 686, 130 Pac. 316, this court held that an offense may be created by defining it by a particular description of the act or acts constituting it, or by defining it as any act which produces, or is reasonably calculated to produce, certain defined or described results. In fact, without a single exception, this court has always held that the penal laws of this state are to be given that reasonable and liberal construction which will enable them to reach and destroy the evils at which they are aimed. For these reasons the authorities cited by counsel for appellant are not applicable to the question now before us. But, even if they were based upon statutes in all respects similar to ours, we would not feel disposed to follow them, unless we understood and approved the principles upon which they are -based. In the early case of Slater v. United States, 1 Okla. Or. 275, 98 Pac. 110, this court said “Precedents should be weighed, and not counted/’ and “a multiplicity of errors does not make right that which is predicated upon false premises, and which was therefore wrong at its inception.” We then declared that we would not follow any precedents, it mattered not by what court established, unless they met with our approval, as a matter of principle. The habit of blindly following and parrot-like repeating precedents without reference to the principles upon which they are based is the cause of most of. the confusion and conflicts which now exist among the decisions of the American appellate courts. One practical illustration is worth a thousand theories. Experience is the acid test of any theory.

A few illustrations will demonstrate the fallacy in the reasoning of the cases relied upon by counsel for appellant.. What is known as the social evil is the greatest danger which now threatens the integrity of society and the purity of the home. It presents itself in many different forms. At first the evil was local in its character and was confined to ordinary bawdy-liouses kept by individual proprietors. Then the rule contended for by counsel for appellant might have been sufficient. But in the development of crime it has gone far beyond this. In the underworld to-day it is recognized as a regular matter of commerce, and trusts are organized for its exploitation, and immense sums of money are made thereby. Thus it has grown to become the infamy of the infamous. The greatest states in the Union and the Congress of the United States have been compelled. recently to pass stringent legislation against the spread of this vice and its attending enormity, the white slave trade. The old doctrine of the common law that the reputation of a house could not be proved will not begin to meet and check the evil as it presents itself to-day. It is a fact so well known in all large cities that courts take judicial knowledge of it that houses of ill fame are established and kept where-lewd persons of either sex are permitted to remain. These-establishments are exclusive in their character and present an-air of gentility and imminent respectability. They are patronized only by persons of both sexes who live double lives- and against whose virtue nothing is publicly known. Innocent and inexperienced girls are inveigled int.o such establishments, and their ruin is accomplished. Men and women of supposed respectability and virtue, and against whose reputation no legal evidence could be obtained, visit these houses for the purpose of indulging in unlawful sexual intercourse. This, is really the most insidious .and dangerous form in which the social evil presents itself. It is more dangerous to a com'munity than a pesthouse of leprosy would be. If the general reputation of such a house were not admissible in evidence against its keeper, it would be almost impossible for the state to secure a conviction, and a community in which it was established would be unable to relieve itself of this airhole of hell and recruiting office for perdition. The men who patronize -such houses generally occupy respectable positions in society. The-women who accompany them are generally so heavily veiled as-to make recognition impossible; but, if recognized, many, if not. all, of them will be found to occupy respectable positions in-society. So the state would be forced to rely largely upon the-reputation of such a house to support a prosecution. The practical effect of the position of counsel for appellant would be-to grant immunity to the keepers of such houses, it matters not where located. But again, if we recognize the doctrine contended for by counsel for appellant, it would place it in the-power of those who control these houses to organize a. vice trust in Oklahoma and by changing the women kept in ordinary-bawdyhouses from one town to another and not allowing them to remain in one place long enough for their -true character to become generally known, and thereby the evidence which the authorities relied upon by counsel for appellant recognize as proper could not be obtained by the state. Again, in the case of Nelson v. Territory, 5 Okla. 512, 49 Pac. 920, relied upon by counsel for appellant, it is expressly stated:

“It is competent for the prosecution to show that the house is resorted to by people of both sexes who are reputed to be of lewd and lascivious character. From evidence of the general reputation of the inmates and persons who resort thereto as being lewd and lacivious characters, the law will infer that such characters resort thereto for lewd and immoral purposes.”

If the reputation of those who resort to the house may be proven, why may not the reputation of the house itself be proven? If this inference can be drawn from the character of the persons who resort to such houses, why can it not be drawn from the character of the house to which they resort? If children go to a building which has the reputation of being a schoolhouse, does not this raise the inference that they are going there for the purpose of being educated? ' If entire strangers are seen to enter a house on Sunday which lias the general reputation of being a church, would this not raise the inference that they were going there for the purpose of engaging in religious services? Do ladies go to drug stores to purchase millinery, or go to millinery stores to purchase drugs? As a matter of principle, we are unable to recognize the doctrine established in the authorities relied upon by counsel for appellant. But we are gravely told that the character of a house of ill fame can be established by proving that the inmates have been fined in the police courts as prostitutes. In police courts the fact that a woman resides in or resorts to a house of ill fame is conclusive of the character of the woman. According to the position of counsel for appellant, while the reputation of a house may not be admissible in the first instance, yet, after it has received the seal of approval of the police •court, it then becomes competent in a court of record. If this court refuses to blindly follow the decisions of the appellate courts of other states, we would instantly assume a ridiculous position if we allowed ourselves to be bound by the decisions of a police court. So as a matter' of principle we submit the cases relied upon by counsel for appellant will not stand the test of reason.

But we are told that the character of a defendant is never admissible in evidence unless he first raises this issue. There are two conclusive answers to be made to this objection: First. The evidence in question does not go to the personal character of the defendant, but goes alone to the reputation of the house she is charged with keeping, and this is the essence of the crime alleged, without reference to her personal character. It is true that the character of a defendant cannot be attacked, as a general rule of law, unless it is first placed in issue by the defendant; but like all othei general rules this has its exceptions.

Mr. Wigmiore, in the second volume of his work on Evidence, sec. 1621, under the head of “Keeping a House of Ill Fame, or a Disorderly House,” says:

“Having regard to the circumstances from which such a reputation arises, and the difficulty in obtaining other evidence in the ordinary way from unimpeachable witnesses, it seems unquestionable that reputation should be admitted as trustworthy and necessary evidence.”

We find the following in the Encycl opedia of Evidence, vol. 4, p. 725:

“Whether reputation is admissible to prove that a house is disorderly is a question concerning which the cases are conflicting. But the weight of authority seems to be that evidence of reputation is admissible to prove the character of a house, and particular acts of lewdness or prostitution need not be be proved. California: Demartini v. Anderson, 127 Cal. 33, 59 Pac. 207. Connecticut: State v. Main, 31 Conn. 572; State v. Morgan, 40 Conn. 46; Cadwell v. State, 17 Conn. 467. Dakota: Territory v. Stone, 2 Dak. 155, 4 N. W. 697; Territory v. Chartrand, 1 Dak. 379, 46 N. W. 583. Florida: King v. State, 17 Fla. 183, Georgia; Hogan v. State, 76 Ga. 82. Idaho: People v. Buchanan, 1 Idaho, 681; Territory v. Bowen, 2 Idaho, 640, 23 Pac. 82. Indiana: Betts v. State, 93 Ind. 375; Whitlock v. State, 4 Ind. App. 432, 30 N. E. 934; Graeter v. State, 105 Ind. 271, 4 N. E. 461. Massachusetts: Commonwealth v. Kimball, 7 Gray, 328; Commonwealth v. Cardoze, 119 Mass, 210. Michigan: O’Brien v. People, 28 Mich. 213. Minnesota: State v. Bresland, 59 Minn. 281, 61 N. W. 450; State v. Reckards, 21 Minn. 47; State v. Smith, 29 Minn. 193, 12 N. W. 524. Montana: State v. Hendricks, 15 Mont. 194, 93 Pac. 93, 48 Am. St. Rep. 666. Nebraska: Drake v. State, 14 Neb. 535, 17 N. W. 117. New Jersey; Jannone v. State (N. J.) 45 Atl. 1032. Ehode Island: State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L. R. A. 609; State v. Towler, 13 R. I. 661. South Carolina: State v. McDowell, Dud. 346. Texas: Sara v. State, 22 Tex. App. 639, 3 S. W. 339; Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 19; Golden v. State, 34 Tex. Cr. R. 143, 29 S. W. 779; Cook v. State, 22 Tex. App. 511, 3 S. W. 749; Sylvester v. State, 42 Tex. 496; Morris v. State, 38 Tex. 604; Allen v. State, 15 Tex. App. 320; Stone v. State, 22 Tex. App. 185, 2 S. W. 585. Wisconsin: State v. Brunell, 29 Wis. 435.”

On the same subject under .the head of bawdyhouses, on page 503 in volume 14 of Cyc., we find the following:

“Under common-law principles it would seem that evidence of the general reputation of .a house would be inadmissible upon the issue of whether it is a bawdyhouse, and so quite a number of authorities hold; but very many authorities hold that the reputation of the house is admissible.”

The terms “bawdyhouse” and “disorderly house” are used interchangeably, and mean the same thing.

In the case of State v. Main, 31 Conn. 572, that court said:

“(3) Evidence of the reputation of the house prior to the discontinuance of the first prosecution- was properly received. In the case of Cadwell v. State, 17 Conn. 467, it was held that evidence of the reputation of the _ house prior to the commission of the offense as charged in the information, and even prior to the enactment of the statute on which that prosecution, was founded, was admissible to prove its reputation at the time of the offense committed, because, as remarked by Judge Storrs, evidence of the reputation of the house previous to a particular time fairly conduced to show its reputation afterwards/ ”

In the case of Territory v. Chartrand, 1 Dak. 383, 46 N. W. 584, the court said:

“The first error assigned is this: That the court erred in admitting evidence to show the general reputation of character of the house kept by defendant. In disposing of this question, it is understood, as the fact appears, that the defendant was the proprietor or keeper of the house in question. That fact being established, both upon principle and authority, we think the testimony competent. Acts of adultery, acts of lewdness, acts of prostitution, are not acts to which the perpetrators give publicity or notoriety. Shameless and degraded indeed must this class of criminals be who will not by all the means within their power conceal and hide their shame. Nor is it a crime which ordinarily will be attended with such circumstances as is calculated to lead to exposure and detection. No immediate death or fatal shot will invite public attention to criminals. From the necessity of the case, therefore, we are unanimously of the opinion that this testimony was properly received.”

In the case of King v. State, 17 Fla. 191, the court said:

“We are -aware that the courts of some of the states have held that evidence of reputation of the house as a house of ill fame is not admissible, but believe the better rule to be that adopted in Connecticut. In that state the language of the statute is precisely similar to our own, ‘keeping a house of ill fame resorted to for the purpose of prostitution or lewdness/ and the courts of that state have held that, by force of these particular words, it is both permissible and necessary to prove the renutation of the house.”

In the case of Betts v. State, 93 Ind. 376, that court said:

“Bouvier, in his Law Dictionary, defines a ‘bawdyhouse’ as being ‘a house of ill fame, kept for the resort and unlawful commerce of lewd people of both sexes’; and other law dictionaries and ■ lawwriters give substantially the same definition. Accepting this definition as sufficient, it has been held, and we have no doubt correctly, that the terms ‘bawdyhouse’ and ‘house of ill fame’ are synonymous. State v. Boardman, 64 Me. 523. Webster’s Dictionary, in giving the meaning of ‘bawdyhouse,’ treats the term ‘house of ill fame, as its synonym. A. ‘house of ill fame’ may therefore be said to be a ‘bawdyhouse kept for the resort and unlawful commerce of lewd people of both sexes.’ The words ‘house of ill fame’ has consequently a well-defined legal, as well as generally accepted meaning. We see no objection to the sufficiency of the indictment. At the trial one Miller was examined as a witness for the state. He stated that he had been acquainted with the defendants since about the 1st of April, 1882, also with the house in which they had lived, as well as the reputation of that house during that period. Over the objection of the defendants, he was permitted to further state that ‘the general reputation' of that house was that it was a house of ill fame, a house of prostitution,’ and complaint is made that this evidence ought to have been excluded. The authorities are not entirely in accord upon the admissibility of such evidence in a case like this, but we think the decided weight of authority is in favor of its admissibility. Moore’s Criminal Law states the rule to be that ‘a house of ill fame may be proved to be such by direct evidence, or by reputation, or by circumstances, as that the inmates were reputed to be prostitutes, or that prostitutes and libertines frequented it, or that lewdness took place therein,’ and numerous authorities are cited in support of these several propositions. See Moore, Crim. L. sec. 1072, and notes. State v. Brunell, 29 Wis. 435, one of the cases cited by Moore, holds that, in a prosecution for keeping a house of ill fame, the state must first prove that the person charged kept the house in question; that the general reputation of the house, and of its frequenters and the defendant, may then be shown, and, if these satisfy the jury that the house was kept and resorted to for the purposes of prostitution and lewdness, they may so find without proof of particular acts of prostitution or levffiness occurring in the house. But that proof that the house was reputed to be a house of ill fame, or that its frequenters and the defendant were persons of bad character for chastity and virtue, is not conclusive of the defendant’s guilt. Such' facts constitute only circumstances proper to be considered by the jury. That case impresses us as one that may be safely followed in this state, and fully sustains the admissibility of the evidence of Miller, objected to as above.”

In the case of State v. McDowell, Dud. (S. C.) 346, the Supreme Court of South Carolina, in .an opinion by Chief Justice O’Neal, said:

“When it is shown that their houses were notorious (that is, known to the whole community) as common bawdy-houses, it is the same thing as if it was proved that over the door of each house was written in the abominable law word, Tawdy within.’ Look to the reason why the law punishes the offense. It is because such houses may draw together dissolute and disorderly persons, to the . danger of the public peace, and may corrupt the manners of both sexes. Is not a house, notorious as a bawdyhouse, the- very thing to attract dissolute and disorderly persons, and is it not the very thing to corrupt the manners of both sexes ? To say ■ that there is any danger of a virtuous woman being convicted on such testimony is utterly absurd. She cannot even be suspected until she has lost her character, and she cannot be convicted until she occupies a position furnishing flagrant proof. But, if such a charge should ever be made against a virtuous woman, her character will be her shield; and in her vindication she may examine into the foundation and truth of every -particular on which such a charge may be made. I think, too, a decent regard to good morals should always be had in the requisition and adduction of evidence in a court of justice. Every corrupting fact which can be supplied by general proof should be excluded. The general proof here is just as satisfactory as the most direct proof can be. Why should more be required? The law does not require it, for no such rule of evidence exists. The best evidence which the nature of the case admits of is an old and familiar rule that has been complied with here; and we have the proof of the truth of the old saying that what everybody says must be true,’ in the admission of the zealous counsel for the defendants that he had not a doubt of their guilt. And, in a case_ in which character is its very gist, I am willing to make that which everybody says the evidence on which a jury may, if they choose, convict defendants fox keeping a bawdyhonse.”

We might continue to quote axithorities to the same effect indefinitely. These are ample to show that we are not without support in the matter of precedents in the position which we have assumed. The rule for which we contend is in strict harmony . with the fundamental principles of justice. If a house has the general reputation of being a bawdy-house, such reputation must be known to its keeper and can only be gained and maintained on account of the conduct of the persons who resort to it. It is inconceivable that a house kept for proper purposes should ever gain the general reputation of being a bawdyhouse. The reputation of - the house is the advertisement of its keeper. It draws customers and is a source of revenue. There is and can be no injustice in holding the keeper of a house responsible for its general reputation when that reputation is backed up by any evidence which tends to show that it is well founded. It was for these reasons that in the case of Carroll v. State, 4 Okla. Cr. 242, 111 Pac. 1021, and the case ef Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003, this court held that in a prosecution for keeping a bawdyhouse it is competent for the state to introduce evidence of the general reputation of the house in the community in which it is situated as to its being a place where lewd and lascivious persons of both sexes congregated for the purpose of unlawful cohabitation or sexual intercourse. But it will be observed that this court has never stated that such evidence alone was sufficient to sustain a conviction. We are of the opinion that those cases which so hold go -too far. We think that, while this evidence is admissible, yet standing alone and by itself it is not sufficient to sustain a conviction. Evidence of recent possession of stolen property is always admissible in a prosecution for theft, but this evidence alone will not sustain a conviction, but must be considered in connection with all of the other facts and circumstances in the case. The danger of convicting a defendant alone upon the reputation of a house is clearly pointed 'out in an opinion by Presiding Judge Armstrong, handed down at the present term of the court, in which the conviction was reversed because there was no corroborating evidence. But in Patterson’s case, post, 132 Pac. 693, the admissibility of evidence of the reputation of the house was recognized and affirmed.

We have discussed this question fully because counsel for appellant so strongly insisted that • such evidence was not admissible for any purpose. In this case there is no question that the appellant kept the house. In fact, it was admitted.

In the light of the testimony of the reputation of the house, in connection with the other testimony in the case, the jury were fully warranted in finding the appellant guilty.

The judgment of the lower court is -therefore in all things affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.


author: ARMSTRONG, P. J.

text:
    GEO. CLARADAY v. STATE.
    No. A-1495.
    Opinion Filed June 7, 1913.
    (132 Pac. 691.)
    1. APPEAL — Costs—Dismissal, (a) Wlien an appeal is taken to this court, the person appealing is required to pay the costs incurred thereby, and a failure to do so amounts to an abandonment of the appeal, and the same will be dismissed on proper motion.
    (b) A poor person, one who is without means with which to pay costs, and who is unable to procure the means from friends or relatives, by filing a proper affidavit and making a satisfactory showing 'is permitted to appeal without the payment of costs.
    2. SAME — Right of Appeal — Statutory Regulation — Costs. The right to appeal is subject to reasonable statutory regulations. Such right does not contemplate an appeal for delay or at the expense of the people,, except in the case of paupers.
    3. SAME — Costs. It is the duty of persons appealing criminal cases to this court to see that proper arrangements are made for the payment of costs. It is not the duty of the court or clerk to be constantly advising them in this connection.
    ('Syllabus by the Court.)

      Appeal from County Court, Ohlahoma ■County; John W. Hay son, Judge.

      Pruiett & Sniggs, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and H. A. King, Sp. Asst. Atty. Gen., for tbe State.
   ARMSTRONG, P. J.

Tbe plaintiff in error, George W. Claraday, was convicted at the September, 1911, term of the connty court of Oklahoma county on the charge of violating the prohibitory law, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 90 days. The appeal was filed in this court on the 24th day of January, 1912. The Attorney General in open court moved the dismissal of this appeal for the reason that the plaintiff in error had not paid the costs accrued on appeal. Counsel for the plaintiff in error in open court stated that they had -been notified to pay the costs and had called upon their client to put up the money; that he had not done so, and in fact had made no response to the request.

This is one of a number of cases of this kind that have been called to the attention of the court; and, while we have never at any time felt inclined to in any way deny a poor person, who has made the proper showing, the right to an appeal without the payment of costs, we find no warrant of law for permitting appeals without costs in the absence of any showing. A person who is in fact a pauper and who has no means with which to pay costs, and is unable to procure such means, and has no relatives or friends willing or able to pay the same, may be entitled to all the benefits of an appeal without such payment being made upon proper showing. But in the absence of any such showing, upon tile failure of a person appealing to pay the costs in advance when the 'appeal is filed, or to pay the amount when notified, such appeal will not be considered by this court. When such a condition is disclosed by -the record, it is evident the appeal is taken for delay only and has been abandoned, and upon motion of the Attorney General we are of opinion that such appeal should be promptly dismissed.

It is true that an appeal is a constitutional right, but the constitutional guaranty in this connection does. not mean that appeals may be had, costs incurred, and delays entailed at the expense of the people, except, as stated, supra (i. e., when an appellant is in fact wholly without means, resources, relatives, or friends upon whom he can rely for the payment of the costs). The constitutional right to appeal is subject to reasonable statutory regulations, and is only infringed when the statutory conditions imposed are such as- to amount to a denial of justice.

The appeal in this case in our judgment should be dismissed, and it is so ordered. The trial court is directed to enforce the judgment and sentence by it imposed.

DOYLE and FURMAN, JJ., concur.