author: FURMAN, J-

text:
    W. R. EDMONS v. STATE.
    No. A-1930.
    Opinion Filed June 14, 1913.
    (132 Pac. 923.)
    1. EVIDENCE — Character. As a general rule, evidence as to the had character of a defendant is not admissible unless he first otters evidence as to his good character; hut this rule does not apply to cases in which character is an element of the offense upon trial.
    2. APPEAL — Ground for Reversal. Courts are established for the sole purpose of enforcing justice, punishing criminals, and suppressing vice, and, when the guilt of a defendant is clearly established, a conviction should not be reversed, except for fundamental errors.
    3. PROSTITUTION — Pandering—Sufficiency of Evidence. Por facts sustaining a conviction for pandering, as defined by section 2425, Rev. Laws 1910, see evidence and opinion.
    (Syllabus by the Court.)

      Appeal from, Superior Court, Pottawatomie County; G. C., Abernathy, Judge.

      W. R. Edmons was prosecuted in .the superior court of Pottawatomie county, charged with the offense of pandering. He was found guilty by the jury, and his punishment was assessed at three years’ imprisonment and a fine of $300, and he appeals.
    Affirmed.
    The evidence in the case was as follows:
    Sylvia Sekavee testified that she was 17 years old; that she had lived in Shawnee 12 years; her father was a car'penter, but was afflicted with rheumatism; that she went to school until she was past 16, and thereafter she was a waiter in private families in Shawnee; that about July 25th she became acquainted with Josephine Pyentka, a Bohemian girl; that on August 25, 1912, she was staying with her sister, Mrs. Pruitt, in Shawnee; that she first became acquainted with defendant Edmons at the Saddle Rock Hotel in the city of Shawnee about August 35th; that Josephine Pyentka’s parents lived in Denver, Colo.; that the two wanted to go to Denver; .they 'did not have money enough to go. on; though Josephine’s parents had sent her a ticket, the two decided to dress in boy’s clothes and “bum” their way on a freight train to Denver; that they had only one boy’s suit; that she left her sister’s about August 20th or 21st; she s'ays, “We didn’t know what to do; we didn’t have but one suit of clothes, and didn’t know where we could get iany, and so we went to Woodland Park and then to the high school .and sat on the steps, and we didn’t want to go back to my sister’s and I had $1.50”; that they decided to go to the Saddle Rock Hotel for the night; didn’t know what kind of a place the Saddle Rock Hotel was; had never been there; went there about 11:30 at night; saw Mr. Fowler and the defendant, Edmons, the latter sitting near the desk upstairs; paid for the room one night; she registered as Mary Sullivan and Josephine registered as Joe Clark,, because they had never been to a cheap boarding house and didn’t want anybody to know they had been up there, and expected to leave next morning; the defendant showed them to the room; did not give them any key .to lock the door; that next morning the poeketbook and dollar were gone; they complained to defendant, who called Mr. Hopkins and Mr. Fowler, who looked for the money; said nothing like that had happened before, but -did not find the money; defendant told -them if they did not have any money they could get their breakfast in the kitchen; that Fowler, Hopkins, and defendant, Edmons, took them to the kitchen; that after breakfast Hopkins said “he had a nice little cook he wanted us to get acquainted with, and said he would bring her in and let her talk to us; she come in and said she had heard we lost our money and said she was awful sorry”; the cook was Rena Beck; the conversation was in the presence of ' Fowler, Hopkins, defendant, and Rena Beck; Hopkins and Fowler went out after Rena Beck; that Hopkins and Fowler gave them as their breakfast what they had left; after this they went to Eena Beck’s room; that Eena Beck, Hopkins, Josephine, and witness were in Eena Beck’s room; stayed there about half an hour; that Eena Beck said there was a sick lady there who would like to see the witness and Josephine, and told them the sick lady was Mrs. Edmons, the wife of the defendant; they went to Mrs. Edmons room and found the defendant there; Hopkins was with them; they talked for a while in there; that “they all wanted us to stay there”;'that day they stayed there until about dinner time and told them they were going to look for work; that they got a Shawnee News-Herald and looked through the advertisements; did not find any work, but went back to the Saddle Eock; that they saw- Edmons and his wife; that Eena Beck told them she “would stand good for our room” that night; that Mrs. Edmonds was present; so said Hopkins. Further she testified that Eena Beck and Mrs. Edmons told her that her (Mrs. Edmons’) husband “would make dates” for her (witness) ; that Mrs. Edmons was present; that Eena Beck said Fowler; the night clerk, would keep watch; “and so the girls would have to pay 50 cents or the boy 35 cents and the girl 35 cents;” that she did not at the. time know what that meant. The witness goes into detail about the conversation; that protection from the officers would be afforded them; that “Eena Beck said we would make good money if we stayed there”; that the second night they were at the Saddle Eock Hotel defendant and Curt Leonard made dates for witness and defendant’s wife, which were fulfilled; that the same night Josephine and Eena Beck were going until about 11:30; that defendant, Hopkins, Fowler, and Mrs. Edmons were afraid Eena Beck had been caught; that Eena Beck had been drunk several times; that during the time she was at the Saddle Eock she saw men going to Eena Beck’s room, one at a time; Eena Beck played the French harp, danced and sung; that witness smoked cigarettes with them; that the morning she went away, defendant and all asked her to come back. On cross-examination she said she registered at a hotel in Oklahoma City under the name of Sylvia May, without the surname; paid 75 cents for her room; at the time she came to Oklahoma City she was staying at the county attorney’s house in Shawnee; came to Oklahoma City and was in charge of the police matron in Oklahoma City when Chief Hawk of Shawnee came after her; that she was at the Broadway Central Hotel in Oklahoma 'City; that she did not tell Mrs. Bartell that she stayed in a house on Bast Grand avenue while in Oklahoma City; that when arrested in Shawnee she told the officers she was 22 years, old, because the defendant, his wife, and Leonard told her to 'do so; that she had never had illicit relations prior to going to the Saddle Rock; that she did not tell the 'defendant and others at the Saddle Rock that she was a lewd woman; that she never went in an autompbile with Pike Baker until after she went to the Saddle Rock. On redirect examination witness testified that she went to the “stomp dance” with defendant, his wife, and Curt Leonard, and this was after she went to the Saddle Rock; that she had three “dates” out there; that she left the Saddle Rock on the 22d or 23d and went to the American Rooming House; that Edmons, Rena Beck, and Fowler got into a fuss about something, and that she and Josephine went to the American Rooming House; that Leonard and defendant went too; that they stayed at the American Rooming House until Sunday night, when they were arrested; that Leonard, Mr. Edmons, and Mrs. Edmons told her to say she was Leonard’s wife; that a raid was made the second, day she was there, and Fowler told them to go down the back stairway.
    Josephine Pyentka testified that she was 18 years old; was born in Bohemia; came to the Hnited States when she was 10 years old; lived in Topeka first, in Shawnee 7 years; that her parents had moved from Shawnee to Denver, but wanted her to stay at Shawnee and earn some money; that she worked for Mrs. Butts and Mrs. Carson in Shawnee; had known Sylvia Sekavec about two months; knew defendant first at the Saddle Rock Hotel; that she and Sylvia went there to get a room; that they were going to “bum” their way to Denver wearing boy’s clothes; that they had only one suit of boy’s clothes, that they walked around awhile, around the high school, and then went to the Saddle Rock Hotel about 12 o’clock; saw Fowler, Rena Beck, and defendant sitting out in front upstairs; got a room; paid 50 cents for it; that Sylvia registered them as Joe Clark and Mary Sullivan; that next morning they told Hopkins the money was gone; first told Edmons; that they were breakfasted in the kitchen; that Hopkins and defendant said they had a little cook they would like for witness and Sylvia to meet, and they brought the “little cook” to the kitchen, who was Rena Beck; that defendant was there; after breakfast they went to Rena’s room; that defendant was in the room; Rena said witness and Sylvia could make money, as much as $5 a day; that Fowler would keep watch; that “dates” would be made by Fowler and Edmons; that afternoon she saw men up there; one was drunk; he went to Rena’s room; defendant was up there; Rena played the French harp; Hopkins, Fowler, Leonard, Sylvia, and the witness and another man were there; that Rena. “played and danced and jigged ” and the men sang; that that night Fowler made a “date” for her and for Rena and the witness; that a policeman was on duty, and the dates at the hotel were not filled; that the next day Edmons and his wife, Leonard, Sylvia, and witness left; that they went to the American Rooming House; that the second morning Sylvia said a policeman was coming and Sylvia, witness, -Edmons, Mrs. Edmons, and Leonard went down the back stairs; after they-went to the American Rooming House they went back.to the Saddle Rock; that “Curley,” who stayed at the Saddle Rock, came after them; stayed at the Saddle Rock two nights the second time; saw Rena Beck and Fowler there; on Sunday following Rena Beck and witness went to Benson Park; stayed there till about 11 o’clock at night; went back to the Saddle Rock; that Fowler made the “dates”; that a raid was made Sunday night; she had a “date” made by Fowler; that Edmons and defendant made “dates” for her during the time she was at the American Rooming House; that she paid Fowler for making “dates”; that she was never before in a house of ill fame. On cross-examination she testified that she went to the Saddle Rock with Sylvia; intended to go to Denver Wednesday or Thursday; did not want to go alone; that her mother, whom she had not seen for about three months, sent her a ticket; that at the Saddle Rock Sylvia told her about becoming a lewd woman; this was after she lost the pocketbook; that Rena Beck -told them about “making money” and.staying there; that the time she, Pike Baker, Louis Smith, and Sylvia went in the automobile was before they went to the Saddle Rock, three weeks before. The witness as to details corroborated Sylvia Sekavec.
    J. S. Spann testified that he was assistant chief of police of Shawnee; was acquainted with general reputation of the Saddle Rock rooms; that they had the reputation of being a house with lewd women in it; that just prior to-August 25th he raided the place and foilnd men and women there; that the .reason he did not find them together was-because Fowler had “tipped them off”; that he saw defendant there several times; that he bore the reputation of being a frequenter of bawdyhouses; that Mattie Edmons, wife of defendant, had the general reputation of being a prostitute; that Rena Beck had the same reputation; that Curley Edwards ,and Fowler who stayed at the -Saddle Rock bore the reputation of being frequenters of bawdyhouses; that he saw~ Fowler almost every night when it was not raining at the-foot of the stairs, “standing there looking around.”
    C. F. Cottrel testified that he was a plainclothes man, on-the police force in Shawnee; that -defendant had the reputation of “doing the pimping for his wife”; that he knew Curley-Edwards, who stayed -at the Saddle Rock and who -had the-reputation of being -a frequenter of bawdyhouses; that Mrs.. Edmons, wife of defendant, lived there and had the reputation of being a prostitute; knew Eena Beck, who lived at the Saddle Rock and who had the same reputation.
    John Lane testified that his wife was the owner of the Saddle Rock; that he knew its general reputation prior to August -25th, and that “it was pretty bad.” On cross-examination defendant’s counsel went into detail as to that reputation and was informed that it was a “first-class bawdyhouse”; that he had brought suit for damages to the house by employing it for such purposes.
    C. C. 'Hawk testified that he was chief of police; that up to two months prior to August 25th the Saddle Rock bore a good reputation; after that time its reputation was bad; that he knew defendant and defendant’s wife; that she had the reputation of being a prostitute; that he knew Curley Edwards, whose reputation as a frequenter of bawdyhouses was bad; that he knew Rena Beck, whose reputation was that of a prostitute; knew defendant, saw him at the Saddle Rock.
    Henry Leeman testified that he was chief of police of Marietta during March, 1912; saw Rena Beck there; that her reputation as a prostitute was bad.
    Rena Beck testified that she was acquainted with Ed-mons, the defendant, Fowler, Hopkins, Sylvia Sekavec, and Joe Pyentka; that about 12 or 1 o’clock she first saw Sylvia and Josephine; they came to the Saddle Rock and wanted a room; that witness was on that night “keeping books”; that Edmons’ wife was sick; that Josephine registered as Joe Clark; Sjdvia under another name, which she did not remember; that she could hear Josephine and Sylvia in their room “black-guarding and cursing and going on,” and saw them smoking cigarettes; next morning she saw the girls in the kitchen; that this was after the girls lost the dollar;-that Hopkins informed witness of the fact; that witness, Josephine, Sylvia, Mrs. Edmons, and Edmons, the defendant, were in Mrs. Ed-mons’ room; that one said Pike Baker was her sweetheart and the other did not give her sweetheart’s name; that they both had grass burs on the back of their clothes; that Sylvia got some cigarette papers out of her stocking and some tobacco and smoked; that they told witness they were lewd women and wanted to stay there at the Saddle Rock; that witness told them that Fowler would not allow them to do that; that the girls went downstairs, came back about night, stayed all night, and the next day “he run them off and told them they could not stay there”; that she did not tell the girls they could stay there and make money; that Bdmons did not tell the girls he would make “dates” for them; that she did not tell them that Fowler would make “dates” for them, nor that Fowler would watch and see they were not arrested, nor that the girls would have to divide the money; that after they left Josephine came back and begged Fowler to let her stay; that Fowler agreed if she would be a “nice girl” she could come back and he would pay her $3 a week to help witness; that she promised; that Fowler had been helping with -the work; that the morning witness prepared breakfast for the girls Fowler was not there and did not come to the hotel until about noon. On cross-examination she testified that she had been married twice; 'did not know where Beck was; had married him on April 18th; had lived with him at Tribbey; did not go with him to Marietta; that in the preliminary and in the trial the day before she did not say anything about Josephine and Sylvia smoking, cursing, etc., because she was not asked about that; that Mr. Fowler told the girls they -could -stay the second night if they had -any money; that on Sunday -she and Josephine went to the park about dark; that two- men came up and talked to them; that Josephine and one went “off up to -a swing”; -did not know either -of the men; talked to- them -about two hours; that she •did no-t see Spann making a raid' -one night; that she lived at Leon, near Marietta, six months; that she was arrested in a man’s room in a rooming house in Marietta; that a policeman persuaded her to put the man’s clothing on, so she would not be bothered if found in the room.
    Mrs. Mattie Edmons testified that she was the wife of defendant; first saw Josephine Pyentka "and Sylvia Sekavec at the Saddle Eock about 12 o’clock one night; -that she (witness) was sick that night; the next day the girls and Eena Beck came in her room; that the girls said they were broke, were lewd women, and wanted to stay there .and make some money; that this was said by Sylvia; that Eena Beck told them they could not do that; that Mr. Fowler would put them out; that Sylvia took a sack of tobacco and cigarette papers out of her stocking and smoked; that she and Josephine turned around and asked Eena. to brush the “grass and stuff off her back”; that they had been out riding with their sweethearts the night before in ran automobile; -that Eena told Mr. Fowler about the. conversation and that Fowler told them they would have to leave, and they passed her room, went downstairs, and came back late in the evening; that they spent the night there and next morning Mr. Fowler told them they could not stay, “and so they left again”; that they went to the American Eooming House; that witness did not tell them they could stay there, nor did she tell them Fowler or Ed-mons would make “dates” for them; that at the American she heard the girls say they had “five dollar dates at the Eagle Hall”; that Josephine, Sylvia, Curt Leonard, defendant,, and witness went to the American; that Leonard occupied the room with Sylvia; that they stayed -about a week there; that Josephine occupied the same room with Sylvia and Leonard; that at the American she (witness) was arrested; that Sylvia gave gave her name -as Sylvia Leonard. On cross-ex-animation she testified that she had never been a prostitute; that she went to the American because Dr. Bradford told her she had to have fresh .air; that she" walked to the American and occupied a room adjoining the room of Sylvia and Leonard’s; that Saturday night witness and Edmons, Sylvia, and Leonard went to the “Indian stomp dance”; that the night (Sunday) they were arrested they were preparing to go to Oklahoma City.
    Mrs. Mary B. Bartell testified that she was police matron in Oklahoma City; that Sylvia Sekavec was' brought to the police station the latter part of August.
    Defendant offered to prove that Sylvia said she had been out on East Grand avenue, and made a statement as to her lewd conduct there. That the girl was being held for an officer from Shawnee.,
    M. A. Fowler testified -that he saw Sylvia and Josephine at the Saddle Bock; that he was in charge of that place; that the girls came in the night something after 12 o’clock; that they paid for a room; next morning they complained they had lost some money; that Hopkins told them if they would go and look for work and could not find any they could come back; that he never told them he would make “dates” for them; that Hopkins was in the real estate business and was manager of the hotel; never made “dates” for Sylvia; did not agree to protect them, nor for them to become inmates of the house, nor to become prostitutes; that the girls went out and came back and told him they found no work; that Bena told him what kind of girls they were; that they stayed another night; that Sylvia did not go buggy riding with Ed-mons the second night; that Josephine came back in a few days and witness told her he would give her work if she wanted to work and he was to give her $3 a week; did not tell any one he would make “dates” for her; never tried 1» make “dates” with the girls; that when the girls left he told them he did not want that class of women there; that he told Josephine if she wanted to work and would be a nice girl she could stay. On cross-examination he testified that he had been at the Saddle Bock about two months prior to the time Josephine and Sylvia went there; that he saw Hopkins there; that witness “had been in the same business at Konawa”; that if there had been any cursing and swearing he supposed he would have heard it if it was very loud; that he did not hear anything like that that night; that next morning he was in Mrs. Edmons’ room with Hopkins, defendant, and the girls; does not know who left first; did not hear anything about the girls being lewd; did not hear either girl say anything about brushing burs off of her back; that it was in the afternoon Rena told him about the girls being lewd women; that he told Mrs. Edmons and Sylvia to go; that he told Edmons and his wife -he would give them 20 minutes to leave there; that after Sylvia came back she told him that she wanted to make some money there; that ,he told her she could not stay there; but she had no money or place to stay and he let her stay that night; that the second night Josephine and Sylvia went to a show, came back, and he locked them in their room; that he locked Joe up Sunday night for his own protection; that the night Spann came up there Rena Beck’s shoes were under his bed; that he did not go into a room and take Josephine Pyentka out of a room; that he does not remember a policeman calling witness’ attention to women’s apparel in one of the rooms.
    Louis Smith testified that he knew Sylvia and Josephine; that he drives Pike Baker’s automobile; about four weeks before “this occurrence” and before the girls’ arrest he and Pike Baker and the two girls were out riding in Baker’s automobile; that this was the only time; that it-was the 17th, Thursday.

      W. R. Edmons testified that he was acquainted with Josephine and Sylvia; that he thinks they came to the Saddle Rock about August 20th, between 12 and 1 o’clock; that next morning they stopped him in the hall and told him they had lost a dollar and a pocketbook; that he told Hopkins and Fowler and they looked for the money and did not find it; that Hopkins told the girls he would give them their breakfast; that the girls told him (Hopkins) they were strangers; that witness was in the kitchen; that Rena Beck came in there; did not see the girls any more till late in the evening; that he was rooming at the Saddle Rock Hotel with his wife; had been there about four days; that his wife was sick; had a conversation with the girls in which they said they had dates at the Eagle Lodge Hall and had been up there to fill them; was not in Bena Beck’s room at any time with the girls; did not make “dates” for them; did not authorize Bena Beck to tell the girls he would make “dates” for them; -that his wife did not go 'driving with Sylvia and a man the second night the girls were there; saw the girls there the second night; that Sylvia, Leonard, Josephine, Mrs. Edmons, and defendant went to the American Booming House; that at the Saddle Bock he had paid for a week in advance and he was paid a refund; that Leonard and Sylvia occupied the same room, and were registered as man and wife.; stayed there till Sunday; was arrested there; that at the police station Sylvia gave her name as Sylvia Leonard; did not tell her to give her name as Sylvia Leonard; did not try to persuade Sylvia to stay at the Saddle Bock; was a lodger at the Saddle Bock; had nothing to do with it; paid for Ms lodging. On cross-examination defendant testified that he had come to Shawnee two or three times, the last time about four months before; came from Oklahoma City; “never kept no track” as to how long he was in Oklahoma City; was working for the Grove Construction Company; first came to Shawnee from Texarkana; “did not keep any track” as to how long he was there; does not “take down the names of the different places” he goes; that while he was at the Saddle Bock he was working for the Woods Produce Company; saw the girls when they came about 12 o’clock at night; the next morning they told him they lost a dollar; that witness told Fowler and Hopkins; that he and Hopkins went into the dining room with them; next saw them in the evening; that he does not remember that the girls told him they were lewd women; that he did not remember that Fowler put them out; that Fowler did not give him and his wife 20 minutes to leave there; that the second day after the second night Leonard and witness went to the American, and came back after them; that be did not make dates for her and his wife; that he had written notes-to Josephine in answer to notes from her.
    Sam Epperly testified that he lived at Econtuehka; that he saw defendant and his wife at Benson Park July 4th; that he had filled a “date” with Mrs. Edmons that night. Mrs. Mattie Edmons denied the testimony of Sam Epperly.
    Henry Leeman testified that Rena Beck pleaded guilty to a charge of prostitution in Marietta.

      W. M. Taylor and Baldwin & Carlton, for appellant.

      G. J. Davenport, Asst. Atty. Gen., for .the State.
   FURMAN, J-

(after stating the facts as above). This prosecution is based upon section 2425, Eev. Laws 1910, which is as follows:

“Any person who shall procure a female inmate for a house of prostitution, or who, by promise, threats, violence or by any device or scheme shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution; or shall procure a place as inmate in a house of prostitution for a female person; or who shall by promise, threats, violence, or by any device or scheme, causé,. induce,^ persuade or encourage an inmate of a house of prostitution to remain therein as such inmate; or, who shall, by fraud, or ■artifice, or by duress of person or goods, or by -abuse of any position of confidence or authority, procure any female person to become an inmate of a house of ill fame, or to enter -any place in which prostitution is encouraged or allowed within this state, or to come into this -state or leave this state for the purpose of prostitution, or who shall procure any female person, who has not previously practiced prostitution to become an inmate of a house of ill fame within this state, or to come into this state or leave this state for the purpose of prostitution; or shall receive or give or agree to receive or give any money or thing of value for procuring or attempting to procure -any female person to become an inmate of a house of ill fame within this state, or -to come into this state or leave- this state for the purpose of prostitution, shall be guilty of pandering, and upon conviction for any offense under this article shall be punished by imprisonment in the state penitentiary for a period of not less than two years nor more than twenty years, and by a fine of not less than three hundred dollars and not to exceed one thousand dollars.”

It is within the personal knowledge of the members of this court that the above and foregoing section was prepared by Hon. Thomas H. Owen, of Muskogee, one of the ablest and most painstaking lawyers in the state of Oklahoma. At the time of the preparation of this section Mr. Owen had before him the statutes of all of the other states on this subject, and the purpose was to make this section broad enough to entirely cover and include every act which might constitute or enter into what is generally known as pandering, and we think that this is its effect. The purpose of the Legislature in adopting this section was as far as possible to break up and destroy the infamous traffic in female virtue which has assumed such proportions as to become a curse to society, more blasting and blighting than any plague or epidemic could be, more terrible than any black slavery or any other kind of slavery that ever existed in this or any other country has been, more degenerating to the morals and ideals of the nation, and more, soul-destroying than all other agencies against decency combined. The Legislature intended, as far as possible, to prevent prostitution from ever becoming a commercialized institution in Oklahoma. This law was passed in answer to the demands -of an enlightened and aroused public conscience. While it includes every kind of pandering, yet one of its special purposes was for the protection of young girls of immature years, who through youth and ignorance and want of experience would otherwise be unable to protect themselves and would become the easy victims of the most despicable specimens of humanity.

Counsel for appellant strenuously complained of the fact that the county attorney in his argument to the jury referred to the defendant and those associated with him as a bunch of hyenas and vultures. The only possible objection which can be urged to the language used by the county attorney is that it did not adequately portray the infamy and moral turpitude of the defendant and those acting with him, for as repulsive as vultures and hyenas axe, they do not feed and fatten npon their own kind. The hyena, who has spent the honrs of the night in reveling among the graves of the dead ■ and whose jaws are dripping with the putrid gore of carcasses, the vulture, who feeds alone upon filth and carrion, are each and both angels of righteousness compared to the man who enriches himself at the expense of female virtue. The comparison made by the county attorney was a compliment to appellant and an insult to vultures and hyenas, to whom the county attorney owes an apology. The panderer will not hesitate at any means to secure girls upon any false pretenses or misrepresentation, or who when intoxicated or drugged and not in possession of their senses .are conveyed to a place for immoral purposes. Prostitution demands youth for its perpetuation. Upon the courts rests the responsibility of seeing that this demand is not supplied, for the law has a conscience as well as a head and hand, and it is the duty of the courts to see that the hand of the law performs those things which the head directs and which the conscience dictates. It is needless for us to discuss the evidence in this case in detail. The truthfulness of the state’s testimony was a question for the jury to determine. From the evidence of the state it appears that .appellant and some other persons were acting together in a conspiracy organized for the purpose of carrying on the -traffic of debauching girls; that to assist them in accomplishing this purpose the prosecuting witness and her companions were robbed of what little money they had and were left in a penniless and destitute condition when they were approached by members of the conspiracy who assumed a friendly feeling for and an interest in -the girls with propositions that the girls should lead lives of shame. It was proven by the state that appellant was guilty of the almost inconceivable infamy of making dates for his wife. This evidence was all admissible because it was a part of the general plan or conspiracy in which the .appellant and others were engaged and tends to show its true character, and upon the further ground that it tends to show the character or -the house -at which the offense is alleged to have been committed.

As .a general rule evidence as to the character of a defendant cannot be introduced unless the defendant first introduces evidence of Ms good character, but this rule does not apply to cases in which the character of the defendant is an element of the crime charged. See Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; Putman v. State, ante, 132 Pac. 916. It was .therefore a part of the res gestae of the ease. We have absolutely no doubt of the guilt of appellant under the testimony in this case, Neither does it appear from the record that he was deprived of any substantial or material right. It is therefore not necessary for us to discuss the various -technical objections urged in his behalf by his counsel.

When it' appears that a defendant is clearly guilty and there are no fundamental errors in the record, this court does not split hairs or make fine-spun distinctions for -the purpose of enabling it to- turn guilty men loose. This has been our invariable rule from the date of the organization of this court, and, while it has brought forth many bitter criticisms of the court, yet we have steadfastly conformed to it. Courts are established for the sole purpose of enforcing justice, -punishing criminals, suppressing vice, and thereby -protecting society. The court that does not live up to this ideal should be abolished as an impediment to justice and -a menace to- the public. On this question we have never had .any doubt, and we are glad to- note that our course has met with the approval and indorsement of the Legislature of the state, for in section 6005, Rev. Laws 1910, we find the following:

“No judgment shall be set aside or new trial granted by ■any appellant coui’t in this state in any case, civil or criminal, on the ground of misdirection of the jury of -the improper admission or rejection of evidence, or as to error in .any matter of pleading -or procedure, unless, in the opinion of the court to which application is made, after -an examination of the entire record, it appears that the error complained of had probably resulted in a miscarriage of justice, or constitutes a substantial violation of a. constitutional or statutory right.”

In Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657, in speaking of a kindred offense, this court mid:

“The conduct for which appellant has been found guilty should not for one moment be condoned by any court or jury, and a conviction in such case, when supported by the evidence, as is done in this ease, should not be set aside, except for the most grave and serious reasons. * * * While it is true -that courts should not discriminate in their administration of law as to individuals, yet there are cases where the' character and make-up of a defendant, taken with his conduct and acts and his ability and capacity to know right from wrong, show him to be .entitled to a less charitable consideration at the hands of the courts than ought to be extended to ordinary individuals. We think that such is the case now before us, and that the verdict .and judgment rendered in this case are altogether legal, just, and righteous. It is sometimes said that a fallen woman is the most depraved of created beings, but we think that the man who is responsible for her fall is much the worse demon of the two. Such characters can expect no sympathy or leniency at the hands of this court.”

There being no doubt about the guilt of appellant and no fundamental errors appearing in the record,, we could not reverse this case without committing a crime against society. Far from having any ground of complaint at the verdict in this case, appellant should be exceedingly thankful therefor, because his punishment was only assessed at three years’ imprisonment and a fine of $300, when the maximum punishment of 20 years’ imprisonment and a $1,000'fine should have been imposed, for the testimony clearly shows that -appellant is a traitor to society and an enemy of the human race. This, in our judgment, amounts almost to a miscarriage of justice, and if this court had the power we would not hesitate for a moment at fixing the punishment of appellant at the maximum of the law, which is 20 years in the penitentiary and a fine of $1,000.

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

DOYLE, J., concurs. ARMSTRONG-, P. ,T., concurs in the affirmation.


source: Caselaw Access Project

author: FURMAN, J.

license: Public Domain

text:
    RENA BECK v. STATE.
    No. A-1931.
    Opinion Filed June 14, 1913.
    (132 Pac. 929.)
    CASE FOLLOWED. Edmons v. State, ante, 132 Pac. 923, followed and approved.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pottawatomie County; C. C. Abernathy, Judge.

    Rena Beck was convicted of pandering, and she appeals.
    Affirmed.

      W. M. Taylor and Baldwin & Carlton, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

This is a companion case with the appeal of W. R. Edmons v. State, 132 Pac. 923, which has just been decided by this court, and in which a complete statement of the evidence given ¡on that trial is set forth. There is no necessity for repeating .this, for the evidence is stronger for the state in this case than it was in the Edmons case.

Upon the authority of the Edmons ease the judgment 'against appellant is in all things affirmed.

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


author: ABMSTBONG, P. J.

text:
    ROY JONES v. STATE.
    No. A-1553.
    Opinion Filed June 21, 1913.
    (132 Pac. 914.)
    1. FALSE PRETENSES — Elements of Offense — Subsequent Acts. A prosecution for obtaining money or other property under false pretenses must be based upon the facts as they existed at the time of, and be the condition precedent to, the parting with the property by owner.
    2. SAME. A prosecution based upon a charge that one unlawfully, falsely, and feloniously, oy color and aid of certain false token, writing, and pretense, to-wit, a certain bank check, etc., induced another to deliver him certain wares, goods, and merchandise, etc., cannot be maintained when the proof shows that the merchandise was sold on different dates, to be settled for at a subsequent date, and no check or other representation was made until after the transaction was completed, and then such check was mentioned and given only in settlement of indebtedness theretofore incurred.
    (Syllabus by the Court.)

      Appeal from District Court, Major County; Jas. B. Cullison, Judge.

    Eoy Jones was convicted of obtaining money under false pretenses, and appeals.
    Eeversed and remanded.

      Brady & Willis, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and J. S. flstes, for the State.
   ABMSTBONG, P. J.

The plaintiff in error, Eoy Jones, was convicted in the district court of Major county, at the June, 1911, term, on a charge of unlawfully obtaining certain merchandise from one E. E. Case.' The information alleges that the plaintiff in error, with intent on his part to cheat and defraud another, to wit, E. E. Case, unlawfully, falsely, fraudulently, and feloniously, by color and aid of certain false token, writing, and pretense,- to wit, a certain bank check, etc., did induce tlie said Case to deliver to him certain goods, wares, and merchandise to the amount of $12.55.

Tbe proof on behalf of- the state discloses the fact that R. E. Case lived la-t Barney, and was engaged in the general merchandise business; that at the time the merchandise in question was sold to Jones he was running a restaurant in said town; that there was a picnic in progress, which lasted three days; that the purchase of the merchandise was made by Jones of Case on three or four different days, • and the amounts charged on account; that -afterwards, in settlement of the account, 'Jones gave Case a check, which check was not honored by the bank upon which it was drawn. Case, the prosecuting witness, testified to this state of facts, and ' admitted that when he sold the goods he expected to collect for them later in cash, and -did not expect to be given a -check.

The Attorney General has confessed error in this case, and in the confession says:

“The evidence.of the prosecuting witness clearly shows that the goods were sold on three different days, and that at the time the defendant first purchased goods from the prosecuting' witness it was arranged and agreed -between the two that the goods should be paid for at -the end of the second -or third day; ■that a picnic was then being held at the place, and the goods bought to be paid for -at the close of the picnic. No check was ever mentioned, nor other representation made until the fourth day afterward, when -the parties went over the account and made- settlement, and the check was then given in payment thereof and accepted by the prosecuting witness. While it may be that defendant intended to defraud the prosecuting witness out of the goods, yet it is clear that no- fal-se token was made the basis thereof, and no reliance, therefore, placed thereon by the prosecuting witness.”

This statement correctly presents the conditions in this case. There is absolutely no merit in the prosecution, and a verdict of -acquittal should have been -dix*ected by the trial court. In order for the plaintiff in error to be found guilty, the charge must be proved as laid in the information.

A prosecution for obtaining money or -other property upon false pretenses must be based upon, facts as they existed at the time of, and be a condition precedent to, the parting with the property by the owner. If one buys merchandise on time, and later gives a bad check in an attempt to pay the debt, there is no false pretenses, and such transaction does not come within the purview of section 2694, Bev. Laws. A bad-check artist lias few friends, and a person who uses such checks and obtains credit, knowing they are ' worthless when given, can be prosecuted under this provision. But if he obtains the property first, and at a subsequent date gives a bad check in payment, the charge will not lie. Ex parte Wheeler, 7 Okla. Cr. 562, 124 Pac. 764.

The judgment is reversed and the cause remanded, with direction to the trial court to dismiss the prosecution.

DOYLE and EUBMAN, JJ.,. concur.


text:
    LINK MOUTRY v. STATE.
    No. A-1836.
    Opinion Filed June 21, 1913.
    (132 Pac. 915.)
    1. HOMICIDE — Self-Defense. No man can take advantage of his own fault and plead as a defense for taking human life a necessity which arose from his own intentional wrongdoing.
    2. SAME — Provoking Difficulty. Where a defendant seeks or provokes a difficulty with the deceased in order that he may have a pretext for killing or inflicting serious bodily injury, upon him, and in such conflict does kill the deceased, the defendant is guilty of murder, it matters not how hard pressed he may have been in the conflict, unless after such provocation has been given or difficulty sought or provoked and before the fatal blow is struck or shot is fired the defendant in good faith abandons such intention ,and seeks to withdraw from the conflict.
    3. SAME — Instructions. Where a defendant is upon trial for murder, and the evidence offered does not present self-defense as a legitimate deduction, it is error for the court to give any instruction at all upon the subject of self-defense; but, this being an error in favor of the defendant, he cannot complain thereat.
    4. SAME — Appeal—Harmless Error. Where a defendant is upon trial for murder, a verdict for manslaughter in the first degree will not be reversed upon the ground that the defendant should have been convicted for murder.
    (Syllabus by the Court.)

      Appeal■ from District Court, Muskogee County; R. P. De Graff enreid, Judge.

      Link Moutry was convicted of manslaughter, and he appeals.
    Affirmed.
    The essential facts in this case are not 'disputed, and may be stated in condensed form as follows: In 1896 the appellant, Link Moutry, was married in Texas, to his wife Birdie. They subsequently moved to Oklahoma. Their matrimonial experiences were anything but pleasant, and in June, 1911, Birdie Moutry secured a divorce from appellant. Appellant entertained a feeling of bitter jealousy toward deceased with reference to the supposed relations existing: between his divorced wife and the deceased, and appellant frequently stated that, if he ever caught deceased around his former wife, he would kill him. Deceased kept a store in the city of Muskogee. The wife of appellant lived near this store, and deceased boarded with her. On the morning of the homicide Birdie Moutry went to the store, and informed deceased that his breakfast was ready. Deceased went to the house of Birdie Moutry for his breakfast. Appellant, armed with a pistol, followed deceased to the house. Birdie Moutry testified that appellant shot deceased without warning. Appellant claims that, when he went into the house of his former wife and found deceased there, an altercation occurred between them in which deceased attempted to strike appellant with a chair, and that appellant: killed deceased in his necessary self-defense.

      S. M. Rutherford, Guy F. Nelson, and James W. 'Cosgrove, for appellant.

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

(after stating the facts as above). According to the state’s evidence the killing was murder pure and simple. According to the testimony of the defense, it was a case in which the appellant sought the deceased armed with a deadly weapon for the purpose of having a difficulty with him and taking his life. The most that appellant can claim was that the killing occurred in a mutual combat. Owing to the divorce which Birdie Moutry had obtained from her husband appellant had no right to enter her house without her invitation or consent. He had no business there. No matter what relations might have existed between the deceased and Birdie Moutry, appellant had no right to interfere and constitute himself sheriff, judge, and jury, and try the deceased, sentence him to death, and execute him upon the spot, and in doing this the right of self-defense did not arise in his behalf.

No man can take advantage of his own fault and plead as a defense for taking -human life a necessity which arose from his own intentional wrongdoing; and where -a defendant seeks or provokes a difficulty with the deceased in order that he may have a pretext for killing or inflicting serious bodily injury upon him, and in such conflict does kill the deceased, the defendant is guilty of murder, it matters not how hard pressed he may have been in the conflict, unless after such provocation has been given or difficulty sought or provoked and before the fatal blow is struck or shot is fired the defendant in good faith -abandons his intention, and seeks to withdraw from the conflict. See Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586; Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; Koozer v. State, 7 Okla. Cr. 336, 123 Pac. 554; Ex parte Colby, 6 Okla. Cr. 187, 124 Pac. 635; Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006. The various phases of the law of provoking a difficulty and of mutual combat are discussed in the above cases, but it is not necessary to discuss them in detail now, for this case is so plain as not to admit of discussion.

The only question presented in the brief of counsel for appellant is that the court erred in its instruction as to the law of self-defense. We think that the court did err in giving this instruction, because self-defense was not a possible .legitimate deduction to be drawn from the evidence offered. Under these conditions, the court should not have instructed upon this issue at all, and any errors which the instructions may contain could not have possibly injured appellant. The error, if any, was in favor of, and not against, appellant. We think that the evidence offered makes out a case of murder, and that the jury in finding appellant guilty of manslaughter in the first degree were probably misled by the too favorable instruction toward appellant which was given by the court.

Finding no prejudicial error in the record, the judgment is in all things affirmed.

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


author: DOYLE, J.

text:
    BUD RITTER v. STATE.
    No. A-1491.
    Opinion Filed June 21, 1913.
    (132 Pac. 913.)
    1. LARCENY — Evidence—Sufficiency. In a prosecution for larceny of live stock, the evidence is held sufficient to support the verdict, and that no prejudicial error was committed on the trial.
    2. WITNESSES — Credibility of Witnesses — Question for Jury. The credibility of the witnesses testifying in behalf of the defendant is the exclusive province of the jury to determine, and although such testimony may be uncontradicted, and not directly impeached, when there are facts and circumstances admitted and proven, tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.
    (Syllabus by the Court.)

      Appeal from District Courts Haslcell County; Malcolm H. Rosser, Judge.

    Bud Bitter was convicted of larceny, and appeals.
    Affirmed.

      John R. Pollan, for plaintiff in error.

      Chas. West, Atty. Gqn., and Smith <C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Bud Bitter was charged, in an information filed in the district court of Le Flore county, with the larceny of two mules, the property of John Blaylock. Upon application of the defendant, a change of venue was granted, and the cause transferred to the district court of Haskell county for trial. The trial was begun in the latter county on June 7, 1911, and thereafter on the same day the jury returned a verdict of guilty. Motion for new trial was overruled, and on June 15, 1911, the court sentenced the defendant to imprisonment for a term of two and one-half years. To reverse the judgment an appeal was perfected.

This is a companion ease to that of Bayless v. State, ante, 130 Pac. 520.

It is contended that the verdict of the jury is not sustained by sufficient evidence, in that the .possession. by Bayless and this defendant of the two mules was an innocent possession, and that, although the mules may have been stolen, this defendant had no knowledge of the fact, and merely acted in the capacity of an employee in assisting Bayless. The evidence was substantially the same as that summarized in the opinion in the Bayless case, supra, and in addition it is shown that John Blaylock, the owner of the stolen mules, hired this defendant to assist him in his search for them, as the defendant had said that he had seen the mules' with some other stock near Heavener, and Blaylock told Bud Bitter and James R. Bay-less that if they would bring in these mules that he would give them $5; that this defendant told Blaylock two or three times that he would get the mules, .that he knew where they were. The evidence shows that during all this time the. mules were in -the possession of Will Franklin, a brother-in-law of James B. Bayless,'and a distant relative of the defendant Bitter, and that this defendant was present when Franklin bought the mules. Bayless and Bitter were seen by several persons very early in that morning leading these mules toward Summerfield, and they had evidently been traveling all night. The defendant in his own behalf testified that the mules were procured by Bayless in a trade from some itinerant horse traders; Bayless giving a little bay pony known as the “Tip Sloan Pony,” and some money, for the mules. It is shown by the defendant’s testimony that, as soon as he learned that Blaylock had located his stolen property, he immediately drove to Will Franklin’s, a distance of 25 miles, and told him not to be uneasy about the mules, that Bayless could prove where he got them. The defendant then got on the train and arrived back ■home early the next morning.

We think that the evidence is ample on which to base a conviction. As is said in the Bayless case, the jury are not bound to believe testimony because it is uncontradicted and not directly impeached. The credibility of the witnesses testifying in behalf of the defendant is the exclusive province of the jury to determine; and although such testimony may be un-contradicted and not directly impeached, when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.

See, Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655.

It was .for the jury to find the fact whether the defendant aided and assisted Bayless in stealing the mules. They found the fact and applied the law as the court gave it to them, and their finding has been approved by the trial court. It follows that, in the absence of errors of law apparent in the record, prejudicial to the rights of the defendant, the judgment should be affirmed.

Upon a careful examination of the record, we find no such error. The judgment of the district court of Haskell county is therefore affirmed.

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


author: FUBMAN, J.

text:
    JOSEPHINE HILL v. STATE.
    No. A-1984.
    Opinion Filed June 21, 1913.
    (132 Pac. 950.)
    1. CONSTITUTIONAL LAW — Waiver of Right. A defendant in a criminal case may waive any right, not inalienable, given him by the statute or the Constitution, which can be relinquished with,out affecting the rights of others, and without detriment to the community at large; and such waiver may be made either by express agreement or by conduct, or by a failure to insist upon the right in seasonable time.
    2. SENTENCE AND COMMITMENT — Waiver of Formalities.'Where a defendant has pleaded guilty to a crime, and as soon as the plea is entered, the court, in the presence of the counsel for the defendant, asks the defendant if he desires to waive delay and receive sentence at once, and one of his counsel asks the court to sentence the defendant at once and have the matter gotten through with, to which the defendant assents, the defendant cannot afterwards be heard to complain that he was not asked before being sentenced what reasons, if any, he had to give why sentence should not be pronounced against him.
    (Syllabus by the Court.)

      Appeal from District Court, Mushogee County; B. C. Allen, Judge.

    Josephine Hill pleaded guilty to forgery, and 'appeals.
    Affirmed.

      On the 22d of February, 1913, the appellant being on trial in the distriet court of Muskogee county, the following judgment was entered:
    “Comes now the state, by its attorney, and comes also the defendant in person and by her attorneys, and comes also the jury in this ease, and the taking of testimony is resumed; and, the state haring completed its testimony in chief, the defendant now withdraws her former plea of not guilty, and now says she is guilty of the crime as charged in the information in this case. The defendant now waives time for sentence, and requests immediate sentence. Whereupon the defendant is brought to the bar of the court in the custody of the sheriff of said county of Muskogee; and, it being demanded of her what she has to or can say why sentence of the law upon her plea of guilty of the crime of forgery, first degree, heretofore entered on this date, shall not be pronounced against her, she says that she has nothing further or other to say than she has heretofore said. Whereupon, the premises being seen and by the court well and sufficiently understood, it is by the court considered, ordered, and adjudged that the said Josephine Hill, for her crime aforesaid, be imprisoned in the penitentiary situated at McAlester, Okla., for the term and period of seven (7) years from February 22, 1912, and that she pay the state of Oklahoma a fine of -- dollars, together with all costs in and about this prosecution laid out and expended, and that they have execution therefor. It is further ordered that the sheriff of this county, in whose custody the said Josephine Hill is now here committed, receive and safely keep and convey the body of the said Josephine Hill hence to said penitentiary without delay and deliver her to the custody of the keeper of said penitentiary, who will receive and safely keep the said Josephine Hill in said penitentiary, in execution of the sentence aforesaid, and in conformity with the same for the full period' of time aforesaid. And it is further ordered that the clerk furnish the sheriff of this county with two duly certified copies of this judgment, sentence, and order, one of which shall be delivered to the keeper of said penitentiary, and the other returned by the sheriff of this county with a full and true account of the execution of the same.”
    Thereafter, on the 22d day of March, 1913, the defendant filed a motion in said case to correct the judgment and sentence thereof, and also to vacate and set aside said judgment. The motion is supported by a number of affidavits, all of which are to the same effect, and only one of which will be given:
    “M. L. Leith, of lawful age, being first duly sworn, deposes and says: That he was one of the attorneys in the case of the State of Oklahoma v. Josephine Hill, No. 1,228, in the district court of Muskogee county, Okla., and that he was present at all times, and during all proceedings in said cause, and that at the time the purported sentence was passed upon said defendant, the Honorable K. C. Allen, the presiding judge of said court trying said cause, did not ask said defendant if she had anything to say why the said sentence of the law should not now be passed upon her, the said defendant, or words to that effect; nor did the clerk of said court, under the direction of said court, ask said defendant, Josephine Hill, if she had anything to say why the sentence of the law should not now be passed upon her, or words to that effect. Further affiant saith not. M. L. Leith.”
    Upon the hearing of this motion the state introduced E. L. Kistler, who testified: That he was one of the attorneys who represented appellant in the trial of this cause. That there was associated with him in the defense Mr. Leith, Col. Collier, and Mr. Grayson. That after the state introduced its evidence in this cause and the appellant had taken the witness stand, and when she was being subjected to cross-examination, appellant drew out a bottle from her pocket and apparently tried to swallow its contents. Thereupon court was adjourned. That this was about 11 o’clock in the morning. That when court convened in the afternoon Mr. Leith, Col. Collier, Mr. Grayson, and witness conversed with appellant in the judge’s private chambers on the subject of withdrawing her plea of not guilty. That after the conference was over witness announced in open court before the judge that appellant desired to withdraw her plea of not guilty. Thereupon the court asked appellant if she desired to plead guilty. Appellant replied 'that she did. The court thereupon inquired of appellant whether she desired to waive time and be sentenced now. Mr. Leith requested that the matter be deferred to a later date. The court then stated that he would not discharge the jury until after he had sentenced appellant. Col. Collier then stated, “Do it now and have it over with.” Thereupon the court sentenced appellant. That another jury was out considering another case against appellant, wherein she was charged with forgery. That as soon as sentence was entered the judge discharged the other jury and dismissed that case, making an order barring it from further prosecution. That neither Col. Collier, Mr. Leith, Mr. Gray-son or witness made any objection at the time when the court-asked appellant what objection, if any, she had why sentence should not be pronounced upon her.
    The court thereupon addressed the following questions to the witness:
    “The Court:' Q. There is one matter about which I want to inquire, Mr. Disney, that you will probably want to examine Mr. Kistler upon and about which you know nothing. It will save the necessity of my taking the witness stand in this case, I think. Q. Mr. Kistler, do you remember that it was something like 10 o’clock or after when Mrs. Hill, while'being cross-examined by the county attorney, -threw a bottle of morphine to her -mouth -that she had gotten out of her pocket? A. Yes, sir, I remember that. Q. You remember that bottle was afterwards examined, and' that there was a paper wrapper over the -top of it, and that none of it — so that none of it could get out? A. There was an oil paper in the neck of the bottle which extended about as far in the bottle as the cork went. None of the morphine had come out of the bottle. Q. It was either by her thrown to the floor or knocked out of her hands after having been thrown to her mouth? A. Yes, sir. Q. And when it was picked up it was still in the condition that you have described it? A. It was. Q. She went down then with the sheriff to the closet, and he come back in a few minutes and announced that she had taken something else — -or her husband came back and announced that she had taken something in .the closet ?
    “Mr. Leith: Judge, I do not want to object to everything.
    “The Court: That is a matter about which there can heno dispute, and I just want to get it in the record.
    “Mr. Leith: But I want to object to it as to what Mr. Hill should have said, not in the presence of the defendant.
    “The Court: Objection overruled.

      “Mr. Leith: We except.
    “A. Yes, sir. Q. The court then called in the county physician -and other physicians to examine Mrs. Hill with the view of determining whether or not she had tafeen poison?. A. Yes, sir; that is a fact. Q. The physicians, on account of the report about the powder, gave her something to counteract the effect of it if she had taken any? A. Yes, sir. Q. And then I made an order directing the sheriff to take her to the Turner Hotel and keep her there and let her rest until the afternoon session of the court? A. Yes, sir; I heard the court give such an order or direction. Q. I directed, I think it was Dr. Thompson, or the county physician, to go to the hotel and examine her and see whether or not she was in a condition to proceed with the trial in the afternoon, and also directed Mr. Leith to go to the hotel and tell her to quit her foolishness, and 'come on and let’s proceed with the trial,’ that she was only delaying it; I was going to keep the jury -until she did recover? A. I was not present at that time. When I came to the courthouse my recollection is that Mr. Leith had gone some place, and I understood to the Turner Hotel. Q. Col. Collier, Mr. Leith, Bob Grayson, and yourself went into my private office to consult about this case before she came up to the courthouse after dinner, didn’t you? A. Yes, sir; that is a fact. Q. Do you remember calling me in and asking me— and telling me that you all had advised her, or at' least you and Col. Collier, and I think Mr. Leith told me that he had advised her, that there was — which advice was given to her before the -attempt to commit suicide, that she would unquestionably be convicted in this case?
    “Mr. Leith: Now, if the court please, I hope the court will allow my objections to this. I want to -object to -this because it is incompetent, irrelevant, and immaterial, because it is conversations had not in the presence or hearing of the defendant.
    “The Court: Just getting at the good faith of this plea.
    “Mr. Leith: I understand, your honor. (Exception.)
    “Q. Do you remember that? A. Yes, sir; I recall that conversation. Q. Do you remember then, Mr. Kistler, that you, I believe speaking for the rest of .the attorneys as the spokesman of -the attorneys there- assembled, said that you had —that you all had decided to urge Mrs. Hill to enter a plea of guilty, withdraw her plea of not guilty, and asked me if in my judgment she could do that and have this Batt case dismissed and be sentenced to seven years in this case, and •then if she would tell the truth about all the other forgeries that she had been connected with, or of which she had knowledge, if I would be willing iat the end of two years — or if you could say" to her that you believed that at the end of tufo years -that I would recommend, her pardon or parole? A. Yes.
    “Mr. Leith: Now, just wait, your honor, the objection is the same to that as stated to the last question.
    “The Court: Objection overruled.
    “Mr. Leith: Exception.
    “A. Yes, Q. Do you remember that I told you that it was my — that I now feel like if she had pleaded guilty and will tell all that she knows and tell the entire truth about all of the transactions that she had been connected with — the other forgeries and all of which she had knowledge, that at the end of two years I would be willing to recommend her parole? A. That in substance; yes. Q. Do you remember I then left the court room and immediately returned and said to you gentlemen, ‘1 want to withdraw the statement that I have made’; that. I would be inclined to recommend a parole at the end of two years, ‘and I do not want you to hold out any promises to Mrs. Hill in the event she pleads guilty. I want it to be because she is guilty and without any promises, express or implied, from me with reference to recommending a parole or a pardon of her?’ A. I do not recall that it was that direct and specific, but my recollection of it is that you stepped just outside of the room in which we were sitting, and then immediately stepped back into the room and said that you wanted to withdraw that statement, or something to that effect, and I do not recall what your other words were, but it was not nearly as lengthy as your honor has just stated. Q. It gave you the impression, it was in substance, though, that if she pleaded guilty at all I wanted her to plead guilty without any promises, express or implied, from me, that upon any consideration I would recommend a parole or pardon? A. Yes; that is the idea it conveyed to me, but taking into consideration the entire conversation I felt that it was like all of these other pleas of guilty where they turned state’s evidence; where there is no direct promises there is an implied understanding that some immunity will be granted, ■and it is not put in a direct and specific language in order that it won’t affect their testimony. Now, that is the idea that I had of the matter. Q. There never was any request, though, fur any recommendations until after the expiration of two years? A. No, sir. Q. That has not expired? A. No, sir. Q. And after she had returned you requested that she be brought into the office, that all of the attorneys might discuss the matter about which you had just been talking with her? A. Yes; in the presence of all. Q. After a conference with the attorneys she requested that I come into the room -that she might talk to me- — -is that true, or at least that information was conveyed to me by you, I believe? A. The information was conveyed to you by me, I do not recall just exactly how that came up, though. Q. I went into the room anyway, having been requested to come in there by either Mrs. Hill or the attorneys? A. Yes, sir. Q. When 1 entered the room either you or Col. Collier said, ‘Judge, Mrs. Hill wants to talk to you alone for a while/ and you all started out of the room, isn’t that true? A. Yes; I recall now how that came about; how you happened to come in there; Col. Collier and Mrs. Hill and I were in the room and I had been reprimanding and criticising Mrs. Hill, and I even said to her that I was going in there and plead her guilty, and she says, ‘You can’t plead me guilty,’ and I said, ‘I will go in there and plead you guilty before that jury anyway.’ Col. Collier suggested then that we call.in the judge, and I believe that Mrs. Hill said that she wanted to talk with the judge herself— something like that- — and I called you. Q. After Col. Collier —and then you called me into the room, is that what you started to say? A. I called you into the room and Col. Collier and I started out. Q. Mr. Leith was ahead of you going out, I think? A. I do not recall about that, he may have been. We all had been in there, and when we started out you said to me, ‘Stay in here, Mr. Kistler, I want you to hear what is said.’ Q. I said, ‘ I won’t talk to.Mrs. Hill alone?’ A. Yes. Q. In the absence of her attorneys. That is the statement I made? A. Yes. Q. Mr. Kistler, do you remember the first thing that was said to me after I was seated in the room with you and Mrs. Hill was, ‘Judge, do you think I am guilty?’ And I said, ‘Mrs. Hill, you are the only person who knows,’ and then she began to discuss with me this ease and other cases, and either you or she announced to me that she wanted to tell all she knew, and I said, ‘Mrs. Hill, I do not want to receive from you any confession. I am not prosecuting attorney of this county; I am not authorized to prosecute any one. I do not want to hear any confession, and if you have any confession to make I suggest that you call in -the county attorney and make your confession to him, as he is the man who will have to prosecute upon any confession you make/ A. Those are almost the exact words as I recall them. Q. And then I further said to her, if you remember it, ‘Mrs. Hill, if you do plead guilty I want you to do it of your own free will and accord, and you have a right to go ahead with’ the trial of this case, and if you are convicted, to appeal. I do not want you to plead guilty, nor I won’t accept a plea- from you of guilty, unless you are in fact guilty, and you are the only person who knows. We all may have our opinions about whether you are guilty or innocent, but you are the only party who knows, and before you plead guilty in my court, before I will accept a plea of guilty from you in my court, you must tell me that you enter it of your own free will and accord/ A. Yes, that is substantially the conversation. Q. And I further said to her in the room there that I had had a conference witli the county attorney and with you gentlemen representing her, and the understanding was that if she did plead guilty the Batts case would be dismissed, and that she would be sentenced to seven years in the penitentiary upon a plea of guilty in this case ? A. Yes. Q. Immediately after that we all came into the room and the further proceedings that have been related were had in the room here. This conference was had in my chamber? A. Yes, sir. Q. And the further proceedings were had in open court? A. That is correct. Q. The discussion of the plea of guilty was in my chambers because of the fact that the jury trying her case was assembled in this room? A. Yes, sir. Q. Do you remember when I asked her to stand up after you had said,- ‘May it please the court, the defendant at this time desires to withdraw her plea of not guilty and plead guilty,’ that I ordered her to stand up ?. A. Yes. Q. I said, ‘Mrs. Hill, do you at this time understand fully what you are doing, and the full consequences of your plea of guilty,’ or words to that effect, and she seemed to weaken and sat down? A. Well, about that time I was noticing her; the defendant stood up and then kind of fell back in the chair, and I can’t call in detail the conversations that took place at the time of these transactions. Q. You remember, though, at that time, when she sat down I called on Dr. Thompson, who had been treating her during the morning, and asked him if she was in a physical and mental condition to receive the sentence of the court? A. You asked that at some time, but I can’t say at just what particular time. Q. And he reported that she was? A. He did. Q. And then you remember I asked her, Mr. Kistler, if she desired to waive time and be sentenced now, and she nodded her head, and I .said, 'Gentlemen, I don’t know; I am inclined to think -that this defendant is not a sick woman, but I am inclined to pass this sentence over for a few days,’ and Mr. Leith says at the time, 'Judge, I think that it had better be done’ — either that I said that or that she had a right to wait two days for the sentence of the court upon the plea, and Mr. Leith says, 'I think that had better be done,’ and Col. Collier then in a hurried whispered conversation said to me, 'Judge, let’s get it over with now.’ Do you remember that? ' A.. Judge, you have got so much of it there that I can’t quite— Q. You, as one of the attorneys, understood at the time that she entered her plea that it was the agreement that I would then sentence her to- seven years in the penitentiary, and that the preliminaries had been discussed with her in my chambers and the agreement made to plead her guilty and sentence her to seven years in the penitentiary? A. Yes.
    ''Mr. Leith: I want to object to that, may it please the court.
    "The Court: Ohiection overruled.
    "Mr. Leith: I want the court to allow me an objection and exceptions to all the evidence on that line without interrupting the court, if the court will allow it.
    “The Court: All right, sir.
    “Q.. You had had a conversation with her and did not think she was in the mental condition that she did not understand what was going on, did you, Mr. Kistler?
    "Mr. Leith: We want to object to that as a privileged communication.
    “The Court: Objection overruled.
    “Mr. Leith: Exception.
    "A. At the time, had I not thought that she knew what she was doing, I would not have consented for the plea to go at that tinie. Q. You have had a large and extensive criminal practice Mr. Kistler, for the last ten years at least, haven’t you? A. Well, what I consider a fair practice. Q. You, as her •attorney, were advising her to take the steps that she did take, •and .to receive the sentence that was imposed, were you? A. Yes; I advised her to do that. Q. It was upon her own request that she was sentenced to seven years in the penitentiary, wasn’t it? A. Yes; now, I want to make a statement right there. I ani placed in a rather embarrassing place in this, as a matter of fact — when we met here at 1:30 on that afternoon I was just about out of patience. Q. Yon was not so much .so with your client that yon wanted to plead her guilty, was you, and -see her go to the penitentiary? A. Yes. Q. Regardless of whether she was guilty or innocent?
    “Mr. Leith: I want to object -to that question, may it please the court.
    “The Court: Yes, I will strike it.
    “Q. Mr. Kistler, from the beginning of this affair until the final sentence by the court, was any word said that could be inferred as an intimation upon the part of the court that he desired of this defendant a plea of guilty? A. No; there was not that I heard. Q. Do you now say that her plea of guilty was freely and voluntarily, and without any coercion or any intimidation on the part of the court? A. Yes. Q. Or on the part of the county attorney? A. Yes. Q. It came as a request from her that she be sentenced to seven years and that the other cases be dismissed? A. Yes. Q. No suggestion was made by any one that she was not in a mental condition to receive sentence, was there? A. There was not. Q. I asked her if she thoroughly understood what she was doing, didn’t I? A. I can’t say as to that. Q. I told her in my chambers that if she did plead guilty I wanted it to be upon the understanding that she was going to serve seven years in the penitentiary? A. Yes, you told me that. Q. She offered me no cause then in reply to that why I should not sentence her? A. She did not. Q. She didn’t in the courtroom, did she? A. She did not. Q. I believe that is all. * * * Q. Mr. 'Kistler, I did not intend to ask you this question, but it has been brought out by the apparent answer that at least the deduction of it I think can be drawn from the answer that you did not believe she was .in physical condition to receive the sentence. Isn’t it a fact that on that date and after sentence that you told me that you did not believe she had taken a thing, and that she had just done that for the effect upon the jury; that she had just made that attempt to commit suicide for effect upon the jury? A. No; I do not recall that because we all know and saw from the bottle that she had not taken anything. Q. It was the general impression, not only of everybody else, but of the physicians, that she had staged the affair for the effect it might have upon the jury, wasn’t it?
    “Mr. Leith: I want to object to that because it is incompetent, irrelevant, and immaterial, and calling for a conclusion of what other people thought.
    “The Court: Objection overruled.
    “A. Well, that was the general conversation. Q. Do you not want to be understood as saying in this record that you recommended and asked the court to sentence her seven years in the penitentiary when in fact you believed that she was not in physical and mental condition to receive that sentence, do you? A. I do not care what is understood or inferred; it does not make any difference to me.; the proposition is just simply this: I at the time, if I had not thought she was mentally capable of understanding and knowing what was going on, and what she was doing, why I would not have made that motion, as I stated a while ago; since that time, and after I have thought about the matter a great deal, I have regretted • that I said the things to her that I did before she entered the plea, before she consented to plead guilty. Q. Eeally the object of the plea of guilty — the reason the plea of guilty was brought about— was because of the overwhelming testimony pointing to her guilt, wasn’t it, and the fact that the attorneys- all believed that they would not be able to get a verdict of not guilty at the hands of the jury then trying her?
    '“Mr. Leith: I object to that because it is incompetent, irrelevant, and immaterial.
    “A. I was almost positive that there would not be a verdict of guilty. The venue in the case had not been clearly established, but the thing that moved me in doing and saying what I did was the attempted suicide on this witness stand. Q. Didn’t you believe at that time that she would be convicted if left to the jury? A. No. Q. Didn’t you so- tell her the night before, and tell me that you had advised her that there was no possible chance to escape a verdict of guilty? A. Yes, sir; and I refused to let any witnesses go on the witness stand, and I told her in this room — Q. You did that because you told her that you would not argue perjured testimony to a jury, didn’t you? A. Yes, sir. Q. Col. Collier told me, and one of -the attorneys in this case, in your presence after dinner, and before the verdict of guilty- — I mean before the attempt to commit suicide in the morning — that he was opposed to putting 'any witnesses on the stand; that he had practiced law. I think he said, for more than 40 years honorably, had never put a witness on the stand when he was going to swear falsely, and he would not put the witnesses he had upon the stand and argue perjured testimony to the jury. A. The fact of the business is—
    “Mr. Leith: I object to that. I want to state to the court here for th.e court’s benefit that there was no offer by anybody to put any witnesses on the stand that she had. The attorneys absolutely contended all the time, and wanted to rest when the state rested, and not put even her on the stand.
    “The Court: I asked Mr. Edstler if Col. Collier didn’t say that.
    “Mr. Leith: I want to object to that because it is incompetent, irrelevant, and immaterial as to what he said.
    “The Court: Objection overruled.
    “Q. (Question read.) A. Yes, Col. Collier said that, but I want to state to the court how it was. I told Mrs. Hill, and so did Mr. Leith, that she should not go on the witness stand, and she says: T am going on that witness stand; I must testify; I am going on the witness stand’ — and I said: ‘You are not going on it; if you go on that witnessi stand, I will go in there and plead you guilty, and I will plead you guilty before that jury,’ and she said ‘you could not plead me guilty,’’ and I said: ‘ I will plead you guilty before that jury, and then I would like to see what you would do,’ and Col. Collier then insisted that she should go on the witness stand if she wanted to, and if the court will remember, I refused to examine her, and Col. Collier took the chair and examined her.. Q. You did that because you bad examined the deeds, the exhibits of the state in the case, and knew that they were traceries,, didn’t you ?”
    W. E. Disney testified for the state as follows:
    “A. As I remember the occurrence of the plea of guilty of Mrs. Josephine Iiill in Nó. 1,228, following the conference of the judge and counsel for the defendant with the defendant in the chambers of the court, they all immediately came into-the courtroom and the defendant walked in, and the judge of the court immediately convened the court, and Mr. Histler arose — the jury was not present; if I reimember correctly, at that particular time —and Mr. Kistler arose and announced that the defendant- desired to withdraw her plea of not guilty and enter her plea of guilty, and the judge took his docket and began to write and to talk a-t the same time -and entered his record, and ordered the defendant to stand up, and she did stand up, and I believe once was assisted to her feet by her husband and Mr. Selby, the deputy sheriff, and, apparently, at one -time swooned away. The physician present, Dr. Claud Thompson, who had attended her for two or three hours, and who- had given her an emetic following her feigned -attempted suicide, was inquired of by the judge if she knew what she was doing — in almost that language — no, if she was in condition to know what she was doing and understood what she was doing, and the doctor’s language, I believe almost verbatim, was this: ‘Yes; she knows what she is -doing, but she is a little nervous’ — and following Mr. Kistler’s statement that -the defendant desired to withdraw her plea of not guilty -and plead guilty, the judge asked -almost in this language, as I recall it, ‘Do you -desire to waive time and be sentenced now?’ and my memory is that Mr. Kistler said, ‘Yes,’ sorter in the way of his own, rather quietly, and turned around to the defendant, and, if I remember this correctly, made some suggestion to* her t-o answer what the court asked of her. I believe that Mr. Kistler said, ‘Yes,’ that they did desire to waive time, and as he said about that time he was -to- a certain extent superseded, ■and M-r. Leith made a suggestion that we defer this matter, and that the judge of the court— I think then I objected to that procedure, and suggested to the judge of the court that this jury was out in this case and were waiting, and that the jury was deliberating on the Batts case out in the jury room, deliberating, and that would necessitate keeping two juries here and there was no use doing that, and then I think 'followed the conversation between the judge of the court and the physician, and then the sentence was pronounced, -and then immediately the jury, in 1,237, the Batts case, was brought in here, -and the court -told them what had happened, and the defendant was-present, the court told the jury that the defendant had just now pleaded guilty in the case -on trial; that he was going to discharge -them from further consideration of this case and they were discharged, and the record was entered up in the Ba-tts case, No. 1,237, specifically ordering .that this case be ■a bar — that this dismissal, which was then and there entered up, be barred to a further prosecution of that case, and I want now to introduce in evidence the record in this case, the Batts ease.
    “The -Court: Can it be agreed that the following is the record in that case entered by the judge and by the clerk at that time: ‘2 — 22—1913. Jury discharged. Cause dismissed on motion of county attorney on account of plea of guilty in No. 1,228, with bar to further prosecution.
    “Mr. Leith: Yes, sir.
    “Mr. Disney: That record was entered after -an agreement before the plea of guilty in 1,228 was entered, or at least was had between myself -and the judge of this Court and all of the attorneys for the defense, in which it was specifically agreed that if the defendant plead guilty in 1,228 that in number 1,237 the case' should be dismissed, and the -order made that it be a bar to a further prosecution, and it was upon that express condition that she ■ had plead guilty in 1,228, that that record was made in 1,237.
    “The Court: Mr. Disney, a good deal has been said here about asking her, three times before she answered, if she desired to withdraw her plea of not guilty and plead guilty; is it not -a fact that -the reason she did not answer .the first two questions was on account of the answer of those questions by the attorney? A. My memory is this, y-o-ur honor, that it was answered by Mr. Kistler — it might have been -one of the other gentlemen for the defense — but it was answered by them, and that -one or the other of them instructed her to answer the court’s questions. I am about as positive as I can be that Mr. Kistler -did answer that particular question. I know that I objected to the -sentence being deferred on account of’ the expense of keeping -two juries here when -she was apparently in a physical and mental condition to receive -the sentence. She walked into the courtroom and walked -out of the courtroom, and walked from the Turner Hotel to the courtroom, a -distance of at least a block, and after she was sentenced she walked to the -sheriffs office, and frotm there to the jail, as I remember, and I think those are the facts, and whether or not it was necessary to sit down when the court was sentencing her or not I do not know. I think it was not any in-o're necessary than the feigned attempt. at suicide in, the. morning.”

      On pages 70 and 71 the following occurs:
    "Mr. Disney: Your bonor, I want to introduce Dr. Claud Thompson as a witness, but I can’t get him here tmtil 4:15 p. m. .
    “Mr. Leith: If the court plea-se, what is the necessity? I can’t see the relevancy of any of this testimony. The only proposition involved in this motion is as to whether or not the question was propounded to the defendant whether or not she had anything to say why the sentence of the law should not be passed upon her.
    “The Court: They are not contending here that she was not in physical and .mental condition to receive the sentence of the-court.
    “Mr. Disney: Do I understand that to be agreed?
    “Mr. Leith: Yes, that is agreed.
    “The Court: Let the record show that it is agreed that the question of her mental and physical condition at the time of being sentenced is not at issue upon this motion, and for that reason the request of the county attorney that the hearing be postponed until the physician can arrive is denied.”
    The court made a statement as follows:
    “Gentlemen, upon this motion, while it'may be true, I do not remember now whether or not in language — I am inclined to think I did not in language say to this defendant, ‘Have you any reason now to offer why the judgment of the court should not be pronounced against' you ?’ Yet in view of the conferences in chambers in the absence of the jury in regarding the plea of guilty concerning the plea of guilty, the fact that it was agreed and understood in there, and before I came upon the bench to formally pronounce the sentence, that she was to plead guilty and receive a sentence of seven years, and that the court was to’dismiss the case No. 1,237, the fact that she was asked here, as I think is shown overwhelmingly by this testimony, and which is a fact, that the court desired to know whether or not she wanted to waive time, and whether or not she requested immediate sentence, to which she replied in the affirmative, is and amounts to the same at least as a direct statement or question, ‘Have you any reason to offer •why the judgment of the court should not be pronounced against you ?’ It amounts to the same; it is in substance the same. I do not think any defendant was ever dealt with more fairly than this defendant was dealt with in receiving from her a plea of guilty, and for this reason the motion will be overruled.”

      M. L. Leith, F. L. Kistler, and Fred L. Zick, and Mc-Adams & Haskell, for appellant.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   FUBMAN, J.

(after stating the facts as above). Without intending to be in the least disrespectful to counsel for appellant, we are of the opinion that this appeal is absolutely without merit, and that the action of the trial judge should be in all things approved.

As an act of justice to the trial court we have prepared an elaborate statement of what occurred when the motion to set aside the judgment was submitted. While it is true a defendant has the right before sentence is pronounced to give any reasons which he -or his counsel may have as to why sentence should not be pronounced against him, yet a defendant in a criminal case may waive any right, not inalienable, given him by the statute or the Constitution, where it can be relinquished without affecting the rights of others, and without detriment to the community at large, and such waiver may be made either by express agreement 'or by conduct, or by a failure to insist upon the right in seasonable time. Scribner v. State, ante, 132 Pac. 933; State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

The record shows conclusively that immediately after the plea of guilty was entered the court doubtless through want of confidence in the good faith of appellant, asked the appellant in the presence of her counsel if she desired to ■ waive delay and receive immediate sentence, and one of her counsel asked that the court sentence the defendant at once and have the matter gotten through with. To this appellant assented. It is therefore too late now to object that appellant was not asked what reasons, if any, she had to give why sentence should not be pronounced upon her. The answers made by appellant and her said counsel were equivalent to saying to tbe court, “We have no reasons to- give why sentence should not be pronounced.”

Counsel for appellant are not in a position to say that appellant was not in a proper mental condition to receive sentence at the time. The record shows the following:

“Mr. Disney: Your honor, I want to introduce Dr. Claud Thompson as a witness, but I can’t get him here until 4:15 p. m. Mr. Leith: If the court please, what is the necessity? I can’t see the relevancy of any of this testimony. The only proposition involved in this motion is as to whether or not the question propounded to the defendant whether or not she had anything to say why the sentence of the law .should not be passed upon her. The Court: They are not contending here that she was not in physical and mental condition to receive the .sentence of the court. Mr. Disney: Do I understand that to be agreed? Mr. Leith: Yes; that is agreed. The Court: Let the record show that it is agreed that the question of her mental and physical condition at the time of being sentenced is not at issue upon this motion, and for that reason the request of the county attorney that the hearing be postponed until the physician can arrive is denied.”

Further comment is unnecessáry. We find no errors in the record. The judgment of the lower court is in all things affirmed.

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