text:
    STATE v. E. T. BROWN.
    No. A-1629.
    Opinion Filed July 19, 1913.
    (133 Pac. 1143.)
    INTOXICATING- LIQUORS — Indictment and Information — Continuando —Duplicity. Under section 3610 (Rev. Laws 1910) of the enforcement act, it is made a misdemeanor for any person to keep or maintain, by himself, or by associating or combining with others, any clubroom or other jDlace in which intoxicating liquors are received and kept for the purpose of distribution or division among the members of any club or association, by any means whatever, and it is made a continuing offense.
    The information charges that the defendant, by himself and by associating and combining with others, did keep and maintain a clubroom in whieh intoxicating liquors were received and kept for the purpose of distribution and division among the members of a certain association.
    Held, an information charging a violation of this section may charge such keeping with a continuando,' and where the statute makes it an offense to do this or that, mentioning both ways disjunctively, the information may, as a general rule, embrace the whole in a single count conjunctively, and it will not be bad for duplicity.
    The judgment of the lower court sustaining a demurrer to the information herein is reversed, and the cause remanded for trial.

      Appeal from County Court, Coal County; R. H. Wells, Judge.

      ■ E. T. Brown was charged with violating the enforcement act, and from a judgment sustaining a demurrer to the information, the state appeals.
    Reversed and remanded.

      James R. Wood, Co. Atty., for the State.
   DOYLE, J.

The county attorney of Coal county preferred and filed in the county court of Coal county an information, verified by his own oath, which, omitting title, verification, and in-dorsements, is as follows:

“'In the name and by the authority of the state of Oklahoma now comes Jas. R. Wood the duly qualified and acting county attorney in and for Coal county, state of Oklahoma, and gives the county court of Coal county and state of Oklahoma to know and be informed that one E. T. Brown did in Coal county, and in the state of Oklahoma, during the months of August, September, October, and November, in the year of our Lord one thousand nine hundred and eleven, and anterior to the presentment hereof, commit the crime of keeping and maintaining a clubroom for selling and furnishing and distributing and dividing prohibited liquors, in the manner and form as follows, to wit: That he, the said E. T. Brown, being then and there a member of a certain organization and an association and a club, to wit, an organization and an association and a club known as the 'Order of Owls/ did then and there willfully and unlawfully and continuously, beginning on the 1st day of August, 1911, and continuing until, and including, the 25th day of November, 1911, keep and maintain by himself and by associating and combining with other persons, "to wit, William Richardson and Press Muller and Charley Addison and Walter Mayer, and with divers and numerous other persons, all members of the aforesaid Order of Owls, a certain clubroom and a place, to wit, the upper story of a two-story frame building, located on the east side of Main street, in the town of Coalgate, in said county of Coal, and state of Oklahoma, known as the ‘Opera House,’ and more particularly described as being situated on lots 39, 40, and 41, in block 36, in said county of Coal, and state of Oklahoma in said upper story of which said building certain malt liquors, to wit, beer, and a certain imitation of and a substitute for malt liquors, to wit, an imitation of and a substitute for beer, were, during said period of time, being continuously received and kept for the purpose, and with a complete and full knowledge and understanding on the part of him, the said E. T. Brown, of being unlawfully sold, bartered, given away, and furnished, and for the purpose and with a full and complete knowledge and understanding on the part of him, the said É. T. Brown, of being unlawfully distributed and divided among the members of said association, contrary to the form of the statutes in such cases made and provided, and against the peace and dig■nity of the state. Jas. R. Wood, County Attorney.”

Upon arraignment the defendant interposed a demurrer on the grounds:

“First, that said information does not contain a statement -of the acts constituting the alleged offense in such language, or in ■such manner, as to enable a person of common understanding to know what is intended; second, that the information is duplicitous, and charges more than one offense.”

The court sustained the demurrer on these grounds. The state excepted, and gave notice of appeal from the judgment and ruling of the court. Proper notices of appeal were given, and the appeal perfected by filing in this court March 1, 1912, á petition in error with transcript;

Section 3610, Rev. Laws 1910, provides that:

■ “Every person who shall within this state, directly or indirectly, keep or maintain by himself or by associating or combining with others, any clubroom or other place in which any liquor, the sale of which is prohibited by this chapter, is received or kept for the purpose of selling, bartering, giving away, or otherwise furnishing, or for distribution or division among members of any club or association by any means whatsoever, and every person who shall sell, barter, give away or otherwise furnish, distribute or divide any such liquors so received or kept shali be guilty of a misdemeanor.”

Under this section of the enforcement act it is made a misdemeanor to keep or maintain, or to associate and combine with others' in keeping or maintaining, a clubroom or other place in which intoxicating liquors are reecived and kept for the purpose of distribution or division among the members of any club or association by any means whatsoever, and it is made a continuing offense. An information charging a violation of this section may charge such keeping with a continuando. Says Mr. Bishop:

“A continuando is an allegation, in any appropriate words, that an offense whereof a day of beginning is stated is continuing commonly to another day stated.” (1 Bishop’s New Crim. Proc. par. 394.)

Says Mr. Wharton:

“A continuing offense is a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy.” (Wharton’s Crim. PI. 474.)

It is our opinion that the information, while it may be subject to criticism for redundancy, and unnecessary particularization, is sufficient. The information charges every essential allegation of the offense defined in the section above quoted, and it is not bad for duplicity.

It follows that the judgment of the county court of Coal county, sustaining the demurrer to the information, should be reversed, and the cause remanded for trial.

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


source: Caselaw Access Project

author: DOYEE, J.

license: Public Domain

text:
    JOHN C. ALLEN v. STATE.
    No. A1594.
    Opinion Filed July 22, 1913.
    (134 Pac. 91.)
    1. RAPE — -Evidence—Specific Acts. On a trial for statutory rape, evidence of specific acts of unchastity on the part of the prose-cutrix with others than the defendant is inadmissible, unless shown to be a part of res gestae, and it was prejudicial error to permit the prosecutrix to testify as to her acts of unehastity with others than the defendant, and not connected with the act charged in the information.
    2. SAME — Necessity of Corroboration. While, as a matter of law, corroboration of the prosecutrix’s testimony as to the fact of sexual intercourse is not essential to a conviction, yet where this issue of fact is controverted, and the testimony of the prose-eutrix bears upon its face inherent evidence of improbability, there must be corroboration by other evidence connecting the defendant with the commission of the crime; especially must this rule be held applicable in a case whore the prosecutrix has been successfully impeached.
    3. APPEAL — Harmless Error. Incompetent, irrelevant, and immaterial evidence, which tends to excite the passions, arouse the prejudices, and awaken the sympathies, or warp or influence the judgment of jurors, cannot be considered as harmless.

      i. RAPE — Sufficiency of Evidence. See opinion for evidence held insufficient to support the verdict and judgment.

      Appeal from District Court, Pontotoc County; Tom D. Me lie own, Judge.

    John C. Allen was convicted of crime, and appeals.
    Reversed.

      Stone & Maxey and Lieuallen & Shulte, for plaintiff in error.

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

John C. Allen was convicted in the district •court of Pontotoc county of the crime of rape alleged in the information to have been committed on one Era Allen, a female ■under the age of sixteen years, on or about November 1, 1910, and his punishment was. assessed by the jury. On July 31, 1911, 'he was sentenced to the penitentiary for a term of five years. 'The conviction rests solely upon the uncorroborated testimony of the daughter of the defendant, the female with whom the incestuous intercourse is alleged' to have been committed. In the view we take of the record and the duty devolving upon this ■court as to the disposition to be made of the case, it is unnecessary, and would perhaps be profitless, to discuss and determine the •questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon the merits. The principal contention is that the evidence was insufficient to justify the verdict, and that errors were committed upon the trial, in admitting incompetent and rejecting competent testimony, which require that this court should reverse the judgment.

To a correct understanding of the case so far as it involves the sufficiency of the evidence to sustain the verdict, a summary of the prosecutrix’s testimony is given, together with a transcript of the most material parts.

She testified that she was about fifteen years of age, and was the daughter of the defendant; that during the year 1910', until in some time in October, she lived at home on her father’s farm near Ahloso; that her father’s ' family consisted of herself, one sister, and three brothers; that one brother was twelve, another ten, and the other six, and her sister was nine years of age; that old Dick Townsend, a negro, stayed with the family. She then testified as follows:

“Q. Era, did ever anything wrong take place between you and old Dick. (The defendant’s objection overruled, and exception.) A. Yes, sir. Q. Did ever anything wrong take place between you and your father? A. Yes, sir. Q. When was that? A. A few weeks before I went to Coffeyville, Kan. Q. Tell the jury what took place, what your father said to you. A, He said it wouldn’t hurt, being as I was already that way. Q. Did your father know your condition then? A. Yes, sir. Q. Were you in the family way at that time? A. Yes, sir; I was up before the grand jury the week before that. Q. Who come with you? A. Papa. Q. Did your father know who' had done this to you? A. I don’t know. Q. How did you happen to go to Coffeyville? Who suggested that you go up there? A. Papa and old Dick. Q. Who brought you to town? A. My oldest brother. Q. Did you have any money? A. Yes, sir. Q. Who gave it to you? A. Papa gave me some of it. Q. Where did you get the balance? A. From old Dick. Q. Who went with you? A. Old Dick went in the head' car. Q. Who did you put up. with there? A. A nigger family. Q. Who put you there? A. Old Dick. Q. How long had you been up there before you saw your father? A. Nearly two months. Q. How long did your father $tay up there? A. He come one day and went home the next. Q. Was your baby born while he was there? A. Yes, sir. Q. Who was there when it was born? Mr. Stone: Objected to as incompetent, irrelevant, and immaterial. By the Court: Overruled. A. Papa and the nigger family was there, and the doctor. Q. What doctor? A. Dr. Whitecombe. Q. What kind of a doctor was he? Mr. Stone: Objected to as incompetent, irrelevant, and immaterial. By the Court: Overruled. Mr. Stone: We except.

“Q. Was he a white man or a nigger? A. Pie was a nigger. Q. Did you know where old Dick was at that time ? A. No, sir. Q. Did you know a Mrs. Williams at Coffeyville? A. Yes, sir. Q. You talked to her, and she talked to you about your trouble? A. Yes, sir. Q. I will get you to state to the jury if you did not lay your trouble on other 'people. Didn’t you tell Mrs. Williams that it was other people than your father and old Dick who caused your downfall? Didn’t you tell Mrs. Williams it was somebody else? A. At the start I did. Q. You told the grand jury it was somebody else, didn’t you? A. Yes, sir. Q. Did you know Dr. Fortner at Coffeyville? A. Yes, sir. Q. You also at first told him about what you told Mrs. Williams, didn’t you? A. Yes, sir. Q. Who moved you from there? A. My uncle, George Thompson, and George Moran. Q. Era, do you know what date your child was born? A. The 8th day of December.”

On cross-examination she stated that in April, 1910, she became in the family way, and the negro Dick Townsend was the father of her baby; that another negro, Oscar Sims, worked there two or three weeks chopping cotton, and had intercourse with her five or six times; that at these times her father was away from home; that she had never told her father that she had been having intercouse with Dick Townsend and Oscar Sims; that at the time she left for Coffeyville, she had never told any person who was the father of the child; that when she returned from Coffeyville she stayed a few days at Mr. Lumpkin’s, and about two months at Mr. Evans’, and went from there to her Grandpa Moran’s; that she had not been permitted to talk to any of her relatives, except George Moran and George Thompson; that the first person she told that her father had intercourse with her was Mrs. Williams, when she came down from Coffeyville and got the baby to carry it back to Kansas; that this was in February when she was at Mrs. Evans’, and no other person was present at the time. She admitted that on the defendant’s preliminary trial her testimony was that her father had intercourse with her about a week after Dick Townsend first had intercourse with her; that her father and her uncle George Thompson were on bad terms, and that her father and her stepmother had trouble and separated in January, 1910; that her stepmother’s brother, Jeff Mills, was frequently at their home while her stepmother was there.

As -a part of her cross-examination witness was asked the following questions and made thereto the following answers:

“Q. All right, I will ask you if on or about the 27th of December, 1910, at the home of Mrs. Williams in Coifeyville, Kan., you made this statement, or in substance this statement, to Mrs. Williams: That your father, John C. Allen, had nothing to do with and that he did not know of your wrong acts; that your father, John C. Allen, was innocent of having had any illicit intercourse with you? Did you make that statement? A. Yes, sir. Q. I will ask you to state if on or about the 27th of December, 1910, at the home of Mrs. Williams in Coifeyville, Kan., you made this statement, or in substance this statement, to Dr. Fortner í That the first time you ever did wrong was when you had intercourse with Jeff Mills, and that your stepmother made you submit to him? A. Yes, sir. Q. Who was Jeff Mills? A. Her brother. Q. I will ask you to state if at the same time and place you made statements to Dr. Fortner that your stepmother told you that she intended to ruin your father, John C. Allen, and that if you ever got caught and told any one that she was the cause of your downfall, she would put you out of the way, and you were afraid of her? Did you make this statement? A. I ain’t sure. I think I did. Q. I will ask you if you did not swear that Jim Ivey was the father of. your child, and that pursuant to that a warrant was issued, and he laid in jail for about six months; that you finally changed your mind about it and come up and had the case dismissed, and he was discharged? (Objected to as not the best evidence.)

“By the Court: Sustained.

“The defendant offers the record of the district clerk in the case of State v. Jim Ivey. (Objection sustained. Exceptions allowed.)”

George B. Thompson testified that he lived near Jesse, and went to Coifeyville with George Moran, who was a brother of Era Allen’s mother, and there found her with a negro family, and she had a baby two or three weeks old that appeared to be a “nigger baby” ; that they placed her with a white lady by the name of Williams, called the “city missionary,” and ten days later they brought her and the baby back to Ada, and on cross-examination stated that when he went to Coifeyville he knew a prosecution was being started against the defendant; .that so far he was furnishing his own money to prosecute the case; that he visited prosecutrix a time or two with her guardian, Frank Johnson.

This was all the testimony on the part of the state.

In behalf of the defendant, J. W. Davis and J. W. Hays, of Ada, testified as impeaching witnesses.

Mrs. Fannie Williams by deposition testified that she was CO years old, a resident of Coffeyville, Kan., commonly called the “city missionary”; that the prosectrix stayed at her home, and on December 27, 1910, in the presence of her daughter, Mrs. Mary E. Tacket, of Wichita, and Dr. Fortner, she stated in substance that her father, John C. Allen, had always been good and kind to her, and that he wanted her to always be “a little lady,” and act nice, and he had nothing to do with and did not know of her wrongful acts; that he was innocent of having had any illicit intercourse with her; that her stepmother had said that she intended to ruin her father, John C. Allen, and, if she ever got caught and told any person that her stepmother had persuaded her to do these acts, that she would put her out of the way, and that she was afraid of her stepmother, and she said that her stepmother had compelled her to give up and submit to Jeff Mills; that these statements were voluntarily made and repeated at different times in the presenc of her daughter and Dr. Fort-ner. On cross-examination she stated that the baby showed colored blood, and she told prosecutrix that her uncles who brought her to witness’ place were trying to implicate her father, and prosecutrix broke down and cried and said that Dick Townsend, a negro, had been with her just about as often as he wanted to, but that the first time she ever did wrong was with Jeff Mills. Witness further stated that she never saw or met the defendant, John C. Allen, nor did she ever receive any letters concerning what her testimony in the case would be.

Dr. C. H. Fortner testified that he was a resident of Coffey-ville and a practicing physician. His further testimony was substantially the same as that of Mrs. Fannie Williams.

Mr. and Mrs. W. B. Lumpkin both testified that Era Allen and her baby were brought to their home in Ada in January, 1911, by her uncle, George Thompson, and she stayed there four or five days, that she said “her father never had anything wrong to do with her, but that it was her stepmother who was the cause of her downfall”; that Mr. Brown, a justice of the peace and the county attorney called and had a conversation with her while she was there.

Chris Myers testified he was a deputy sheriff, and in November, 1910, went to the defendant’s house and told the prose-cutrix that he was sent by the sheriff to make an investigation; that it had been reported that her father was the man who had got her in the family way; that Dr. Palmer was present, and prosecutrix stated that “her father, John C. Allen, had never had intercourse with her, but that two men, one by the name of' Mayo and another man whose name was unknown, both of whom had left the country, had had intercourse with her.”

The defendant testified in his own behalf that he had resided in what is now Oklahoma nearly 30 years, was a farmer, and had never been arrested before for any offense; that the prosecutrix was his oldest child, and would be fifteen years of age the 19th of the coming August; that his first wife died in 1906; that his second wife was Agnes Mills, and they lived together about one year, and separated in January, 1910; that he was away from home a good deal of the time, looking after his children’s allotments; that in October, 1910, he noticed something wrong with Era, and asked her about her trouble and who caused it, and she said no man had had anything to- do with her, and “I couldn’t get anything in the world out of her”; that he then sent her to Ardmore, and they sent her back; that he told his daughter that she had brought disgrace upon the family, and it was too late then to recall it, and he would have to make some effort whereby she would get attention and care, so he sent her off; that old Dick Townsend worked for and lived with him; that he went to Coffeyville, and was there the day her child was born, and he'thought it was part Mexican, as there were Mexicans on his place; that he never suspected Dick Townsend; that another reason for sending her off was to keep the rest of the children from knowing it; that he then sent the rest of the children to Ardmore to school; that the feeling was unfriendly between him and Thompson and the Morans. He denied having had improper relations of any kind with the prosecutrix.

The record shows that over the defendant’s objection the state was permitted to prove by the prosecutrix that she had intercourse with a negro seven months prior to the commission of the alleged offense by the defendant; that she had left the state with this negro; that she had given birth to a negro baby, and was attended by a negro doctor. The precise question here presented has never been decided by the courts of last resort in Oklahoma. In the case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, it was held that upon a trial for statutory rape, evidence of' other acts of sexual intercourse between the same parties is admissible, including evidence of acts committed subsequent to the particular act relied upon for conviction, even though it tends to prove other offenses, as relevant circumstances tending to show the relation and familiarity of the parties, and continu-ousness of the illicit relation, thereby tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction. However, the doctrine of the Morris case is not applicable to' the question under consideration. In the case of Walker v. State, 8 Okla. Cr. 125, 126 Pac. 829, it was held that, as a general rule, the prosecutrix cannot be cross-examined as to whether she had sexual intercourse with others than the defendant.

Upon the issue as to the age of the prosecutrix it was an undisputed fact that she was under sixteen years of age. The only other issue involved upon the trial was the fact of sexual intercourse by the defendant with the prosecutrix.

The defendant had a right to have the evidence confined to the issue. This evidence discloses a series of acts and events so revolting and disgusting as to shock the conscience and offend the sense of de'cency of all but the degenerate, and it in no way, directly or indirectly, connects the defendant with the crime charged in the information. While it is permissible and proper for the state to introduce evidence of any facts or circumstances that would tend, to corroborate the prosecutrix, and establish her credibility, the testimony objected to could have' no such effect. The only effect this incompetent evidence could possibly have had was to arouse and inflame the passions of the jury to the utmost extent, and to prejudice them against the defendant. That such would be its natural and necessary effect no one can doubt. It is of such a character that no one with common feelings of humanity can read it without being prejudiced against the defendant for his neglect and carelessness in failing to properly protect and guard the virtue and welfare of his daughter, and that is all it tended to prove. The defendant was not on trial for his delinquency in this respect. It was not claimed upon the trial that the defendant had any knowledge of the libidinous conduct of the prosecutrix until seven months after her pregnancy, and therefore evidence of such prior acts of sexual intercourse with others than the defendant could in no way show or have any bearing on the relations of the defendant with the prosecutrix, nor could it corroborate her testimony to the effect that the defendant had committed the act charged in the information. Neither does the fact that the prosecutrix was delivered of a negro child tend to corroborate her testimony that the defendant, a white man, had sexual intercourse with her. It was therefore incompetent and improper, and should not have been admitted.

It is a well-established principle of criminal jurisprudence that incompetent, irrelevant, and immaterial evidence which tends to excite the passions, arouse the prejudices, and awaken the sympathies, or warp or influence the judgment of jurors in any degree cannot be considered as harmless.

It is our opinion that in this character of cases evidence of specific acts of unchastity on the part of the prosecutrix with others than the defendant is inadmissible, unless shown to be a part of the res gestae, and it was prejudicial error to permit the prosecutrix to answer these questions.

Is the evidence sufficient to sustain a verdict? The conviction was based upon the uncorroborated testimony of the prose-cutrix, her story was intrinsically improbable, and almost incredible, and she was impeached by every witness who testified in the trial. It was shown that she had at various times charged no less than six other persons with having had criminal intercourse with her. It was also shown by the only other witness for the state, Thompson, that he had instituted proceedings against the defendant before going with George Moran to visit the prose-cutrix in Kansas, and although he brought her back for the purpose of prosecuting the defendant, it is undisputed that it was only after she had been for some time with the Morans that she consented to charge the defendant with having had sexual intercourse with her. With these facts before us, we think that the testimony of the prosecutrix was maliciously inspired, and that the verdict was more the result of prejudice or public sentiment than the calm and dispassionate conclusion of the jury upon the facts in evidence.

The rule is that where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, to sustain a conviction, there should be corroboration by other evidence as to the principal facts relied on to constitute the crime. Especially must this rule be held applicable in a case where the prosecutrix has been successfully impeached. In the case of Morris v. State, supra, it is said:

“This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and, while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prose-cutrix, if inherently improbable and uncorroborated, will not justify or support a conviction, as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law.”

See, also, Palmer v. State, 7 Okla. Cr. 557, 124 Pac. 928.

The questions already discussed are sufficient to dispose of the appeal. The record discloses other rulings, arising during the conduct of the trial, that would be difficult, if not impossible, to defend.

For the reasons indicated in the opinion, the judgment of the district court of Pontotoc, county is reversed, and the cause remanded thereto, to be disposed of as required by law.

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


author: ARMSTRONG, P. J.

text:
    J. M. DUPREE v. STATE.
    No. A-1680.
    Opinion Filed July 26, 1913.
    (134 Pac. 86.)
    1. APPEAL — Harmless Error. In this state it is the duty of trial judges to see that trials of all criminal cases are conducted, fairly and impartially and according to law. The doctrine of harmless error, so frequently invoked by this court, was not established for the purpose of permitting and encouraging trial courts to depart from the established and well-recognized principles governing the trial of criminal eases. It is only in cases wherein the reeord discloses the fact that the trial court has made an honest effort to follow the law and endeavored to give the accused a fair and impartial trial that this doctrine is invoked. It does not then apply in the trial court, and is only to be applied by the appellate court.
    2. TRIAL — Conduct of Trial — Responsibility of Trial Court. The trial courts of this state cannot recklessly disregard the rules of law and permit prosecuting attorneys to wring verdicts of guilty from a jury by the introduction of improper evidence and unfair tactics, and then evade the responsibility for such action by permitting the case to be appealed to this court and here reversed. The responsibility is solely with the trial court and the prosecuting attorney, and such responsibility cannot be shirked or placed upon this court.
    3. EVIDENCE — Evidence of Other Crimes. For testimony which the prosecuting attorney should not have offered, and which the trial court should not have permitted to be introduced, see opinion.

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

    J. M. Dupree was convicted of conducting a roulette game, and appeals.
    Reversed and remanded.

      Harris & Nowlin and Kenneth C. Crain, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and Herbert M. Peck, for the State. '
   ARMSTRONG, P. J.

The plaintiff in error, J. M. Dupree, was convicted at the January. 191"¿, terra of the county court of Oklahoma county on a charge of conducting a game of roulette, and his punishment -fixed by the court at imprisonment in the county jail for a term of six months and a fine of $1,000.

It is contended that the court committed prejudicial error in admitting certain testimony offered by the state over the objection and exception of the accused. The principal portion of the testimony objected to is as follows:

Witness Witcher, being examined by the county attorney:

“Q. Do you know whether or not prior to July, 1911, Mr. Dupree had his home and lived at the Fair Grounds Hotel? By Claude Nowlin: Objected to for the reason that it is incompetent, irrelevant, and immaterial. By the Court: Overruled, and exception allowed the defendant. A. Yes, sir. O. You were— what official position did you hold prior to July, 1911? A. 1 was in the sheriff's office. Q. Did you have any occasion to go out there prior to July, 1911? A. Yes, sir. Q. For what purpose did you go out there? By Claude Nowlin: Objected to for the reason that it is incompetent, irrelevant, and immaterial. By the Court: Overruled, and exceptions allowed the defendant. A. Raiding. Q. What did you find? A. Well— By Claude Now-lin: Objected to'for the reason that it is incompetent, irrelevant, and immaterial, and prejudicial. By Sam Hooker: The question is withdrawn. Q. For what purpose were you raiding out there? For what? By Claude Nowlin: Same objection. By the Court: Overruled, and exceptions allowed the defendant. A. Why, whisky and beer. By Claude Nowlin: Defendant moves to strike the answer of the witness for the reason that it is incompetent, irrelevant, and immaterial to the issues in this case. By the Court: Overruled, and exceptions allowed the defendant.”

Witness Niblo, being examined by the county attorney:

"Q. Did you see a Klondike game up there in operation? Mr. Nowlin: Objected to as immaterial, if the court please. The Court: Overruled. Mr. Nowlin: Exception. A. Yes, sir; I think so. O. Do you know who was the dealer at the Klondike game? Mr. Nowlin: Hold on a minute. This man is not charged with running a klondike game. The Court: Overruled. Mr. Nowlin: Exception. A. I know him when I see him. Q. What do they call him? A. They call him Charley. O. Did you ever see anybody else deal that Klondike up there besides Charley, in January, 1932? Mr. Nowlin: Objected to as incompetent,, irrelevant, and immaterial; having nothing to do with this particular case. The Court: Overruled. Mr. Nowlin: Exception. A. Yes, I have saw another man at the Klondike table that I didn’t know. On one occasion, this man they call Charley was dealing, and he left the room, for some cause or other, and Mr. Dupree was standing there, and Charley says to him, ‘Take this chair’ — ‘take this’ — or ‘look after this chair’ — or something of that kind, and Mr. Dupree sat down in the chair and picked up the dice box.”

After the foregoing proceedings were had, the county attorney called J. S. Powers, clerk of the county court, and the following examination was conducted:

“O. Mr. Powers, what official position do you occupy? A. Clerk of the county court of Oklahoma county. Q. How long have you been clerk of the county court? A. Since January 9, 1911. O. Do you know the defendant, J. M. Dupree? A. I do. Q. I will get you to state whether or not the records of your court show any informations having been filed in the court during the year 1911, charging the defendant, Dupree, with operating a gambling house during the year 3911. Mr. Nowlin: Just a minute. Wait a minute. We object to this question as incompetent, irrelevant, and immaterial, and prejudicial. The Court: The objection, at this time, will be overruled. Mr. Nowlin: Exception. The Court: Exception allowed. Q. Answer the question. A. I have.' O. I will get you to refer to case 2-1-27 on your appearance docket. I will get you to state what disposition was made of that case. Mr. Nowlin: Objected to, as incompetent,, irrelevant, and immaterial, and not the best evidence. The Court: The objection is overruled. .-V. March 7th J. M. Dupree was arrested and brought before the court. Q. What disposition was made of the case? I will ask you in a minute about the other. Mr. Nowlin: Objected to as wholly incompetent, irrelevant, immaterial, prejudicial, and not the best evidence of what disposition was made of it. The Court: Overruled, and exception allowed the defendant. A. On March 7th the defendant plead guilty and was fined, and judgment entered $100 and costs, which was paid. O. All right. I will ask you whether or not you— Mr. Nowlin: We move to strike out the answer and all of his evidence, and ask that the jury be instructed not to consider it, as incompetent, irrelevant, immaterial, and prejudicial. The Court: The motion to strike is overruled. Mr. Nowlin: Exception. * * * Q. I will ask you whether you have cases 3133 and 3159. A. I have. Q. Against whom were those cases? A. J. M. Dupree and others. Q. Does your record show what disposition was made of those cases? Mr. Nowlin: Same objection — incompetent, irrelevant, "and immaterial. The Court: He may answer that question direct, whether the record shows what disposition was made of them. A. It does. Q. I will get you to examine the files in those cases which have just been referred to, and state whether or not those are the cases (handing papers to witness). Mr. Nowlin: Objected to as incompetent, irrelevant, and immaterial, and prejudicial. The Court: Overruled. Mr. Now-lin : Exception. Mr. Hooker: I ask leave of the court to introduce in evidence the informations in those cases, and the judgments — the record showing the disposition thereof. Mr. Now-lin: Objected to as wholly incompetent, irrelevant, and immaterial, and prejudicial. The Court: Are you asking to introduce 3159 and 3133 ? Mr. Hooker: The informations in those cases, and the record showing the disposition thereof. The Court: For what purpose? Mr. Hooker: For the purpose of showing he paid a fine for gambling. The Court: The objection is overruled, and exception allowed. Let them be introduced. Mr. Nowlin: Exception.”

A true copy of said informations, so introduced in evidence, was and is in the words and figures following, to wit:

“In the County Court in and for Oklahoma County, State of Oklahoma. The State of Oklahoma, Plaintiff, v. J. M. Dupree and Alfred Son, Defendants. Information. In the name and by the authority of the state of Oklahoma comes now Sam Hooker, the duly qualified and acting county attorney in and for Oklahoma county, state of Oklahoma, and on his official oath gives the county court in and for Oklahoma county and state of Oklahoma to know and to be informed that the above-named J. M. Dupree and Alfred Son did,, in Oklahoma county and in the state of Oklahoma, on the 30th day of November in the year A. D. 1911, commit the crime of conducting a game of chance, in manner and form as follows: That they did then and there wrongfully, willfully, and unlawfully conduct as owners a certain gambling game, commonly known as roulette; the same being a banking and percentage game, played with a roulette wheel, for money and other representatives of value, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma. Sam Hooker, County" Attorney, Oklahoma County.

“State of Oklahoma, Oklahoma County, ss.: I, J. H. Ready, being duly sworn, on my oath declare that the statements set forth in the above information are true. J. H. Ready.

“Subscribed and sworn to before me this 1st day of December, 1911. James S. Powers, Clerk of the County Court, by Joe OXeary, Deputy. [Seal.]”

Indorsed:

“3133. In the County Court. Information. The State of Oklahoma, Plaintiff, v. J. M. Dupree, Defendant. Names of witnesses: S. A. Bradford, Frank Marsh, John Dillon, C. W. Wakefield, D. K. Reynolds, S. K. Bernstein. I have examined the facts in this case and recommend that a warrant do issue. Sam Hooker, County Attorney, by J. H. Ready, Assistant County Attorney. Filed in County Court of Oklahoma County, Okla., Dec. 1, 1911. James S. Powers, Clerk, by Joe OXeary, Deputy.”

“In the County Court in and for Oklahoma County, State of Oklahoma. The State of Oklahoma v. J. M. Dupree and Texas Bob, Defendants. Information. In the name • and by the authority of the state of Oklahoma comes now Sam Hooker, the duly qualified and acting county attorney in and for Oklahoma county and state of Oklahoma, and on his official oath gives the county court in and for said Oklahoma county and state of 01& lahoma to know and to be informed that the above-named J. M. Dupree and Texas Bob did, in Oklahoma county and in the state of Oklahoma, on the 16th day of November in the year A. D. 1911, commit the crime of operating a game of roulette, in manner and form as follows. They did unlawfully conduct and operate a game known as roulette; the same being then and there played with a wheel and a marble, for money and other representatives of value, contrary 'to the form of the statutes in such cases made and provided and against the peace and dignity of the state. Sam Plooker, County Attorney, Oklahoma County.

“State of Oklahoma, Oklahoma County, ss.: I, Sam Hooker, being duly sworn, on my oath declare that the statements set forth in the above information are true. Sam Hooker.

“Subscribed and sworn to before me this 16th day of December, 1911. James S. Powers, Clerk of the Countv Court. [Seal.]”

Indorsed:

“3159. In the County Court. Information. The State of Oklahoma, Plaintiff, v. -, Defendants. Names of witnesses: C. C. Brown, H. M. Peek, S. K. Bernstein, [and others]. I have examined the facts in this case and recommend that a warrant do issue. Sam Hooker, County Attorney. Filed in County Court of Oklahoma Count}'', Okla., Dec. 16, 1911. James S. Powers, Clerk of the County Court.”

“Q. Turn to your record, now, and tell what disposition was made of case 3133. Mr. Nowlin: Objected to, as wholly incompetent, irrelevant, and immaterial under the issues in this case, and prejudicial to the defendant, and at a time long previous, and seeking to prejudice this defendant on compromised cases between him and the county attorney heretofore. The Court: Overruled. Mr. Nowlin: Exception. A. January 1 [10], 1912, J. M. Dupree entered a plea of guilty to a charge of gambling, and fined $50 and costs. Mr. Nowlin: I move to strike that out, as wholly incompetent, irrelevant, and immaterial. The Court: The motion to strike is overruled. Mr. Nowlin: Exception. Q. What is the number?' A. 3133. Q. What disposition was made of 3159? Mr. Nowlin: Same objection. The Court: Overruled. Air. Nowlin: Exception. A. On January 10, 1912, defendant entered a plea of guilty to a charge of gambling, and fined $100 and costs. Mr. Nowlin; I move to strike out, as wholly incompetent, irrelevant, and immaterial, and prejudicial, and hasn’t anything to do with this case. The Court: The motion is overruled. Mr. Nowlin: Exception. Q. What disposition was made of case 21-27? Mr. Nowlin: Same objection. The Court: Objection sustained until it is introduced. Mr. Plooker: What did the. court say? The Court: Sustained. As I understand it, that is not in evidence yet. Mr. Plooker: I ask leave to introduce that,, too. The Court: You introduced 3133 and 3159. Air. Hooker: Now I ask leave to introduce the information in 2427. Air. Now-lin: Objected to, as incompetent, irrelevant, and immaterial."

E. Van AI ousel was then put on the stand and the following examination was had by the count}'- attorney:

“Q. Did you see the defendant, Dupree, on that date? A. Well, on which date? Q. Either on the 6th or the 7th. A. Well, now, I can’t say that I did. Q. What did you see going on there on those dates, Mr. Van AÍousel? A. Well, there was a roulette game, crap table, and Klondike game. Q. What were those games played with ? A. Some of them played with chips, and some of them played with money. Q. Did you see the defendant on or about the 9th or 10th of January, 1912, at 6J4 North Broadway? Mr. Nowlin: Objected to as relating to a time after this information was filed. The Court:.Overruled. Mr. Nowlin: Exception. A. How’s that? Q. Did you see Dupree at that place about the 9th or 10th of January, 191*á ? A. Well, about the 9th. I think I seen Mr. Dupree on the 9th. O. What was he doing there at that time? A. Well, be was in the house, walking about. Q. Did you see a Klondike game in operation on that date? Mr. Nowlin: Objected to, as wholly immaterial. This is a game of roulette, two days before. The Court: Overruled. Mr. Nowlin: Exception. A. Yes, sir. Q. Do you know who was operating that game of Klondike — what they call the dealer? A. Why, a man named Charley. Q. Do you know what his other name is? A. No, sir. O. Did Charley operate, that game during all the time you were there? Mr. Nowlin: Objected to, as wholly immaterial, incompetent, and irrelevant. The Court: Overruled. A. With the exception of just a few minutes. Q. Who operated the game while Charley wasn't there? Mr. Nowlin: Objected to, as assuming that it was operated at all while Charley wasn’t there — incompetent, irrelevant, and immaterial. The Court: Overruled. Mr. Nowlin: Exception. Q. Answer the question. A. Why, a man they called Dupe. Q. Is that the gentleman there (indicating defendant, Dupree) ? A. Well, he resembles the man. Q. Tell the jury whether or not Mr. Dupree is the man you saw operate that game of Klondike while Mr. Charley stepped out? Mr. Nowlin: Objected to, as incompetent, irrelevant, and immaterial, not cross-examination, and a repetition. The Court: Over- < ruled. Mr. Nowlin: Exception. A. Well, shall I answer that? Q. Yes. Do you know whether that is the man? You saw the man, didn’t you? A. Well, now, I am going to answer that the way I seen it. Q. That’s the way I want it. A. That’s it. • This man called Charley, he wanted to go — to leave the house, I giiess, or some place — and he spoke to this man and says, ‘You watch this thing while I am gone,’ and this man walked behind the table. O. What did he do when he walked behind the table? Mr. Nowlin: Objected to as incompetent, irrelevant, and immaterial. A. Just stood ther’e, or sat down. Q. Is this the man (indicating) ? A. Well, I am pretty sure that is the man.”

The foregoing evidence, elicited by the county attorney over the objections of counsel for the accused, has no reference or bearing in the remotest degree on the issue being tried before the court and jury. This evidence shows that some time prior to July. 1911, a raid was made, and whisky and beer found at a place occupied by the accused; that at various other times charges of gambling had been filed against the accused. In some instances he had paid fines therefor; none of them having any connection or bearing upon the case then under consideration. We have been called upon repeatedly to review records disclosing conditions similar to those disclosed by the foregoing excerpts from the record in the case at bar. It is doubtful if any of them,, however, disclose a more reckless disregard for the rights of a person on trial.

In Smith v. State, 5 Okla. Cr. 68, 113 Pac. 204, this court said:

“The issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses. Whart. Crim. Ev. par. 104; 1 Bish. Crim. Proc. par. 1120; State v. Hughes, 3 Kan. App. 95, 45 Pac. 94; King v. State, 66 Miss. 502, 6 South. 188; Stone v. State (Miss.) 7 South. 500; McClure v. State, 148 Ala. 625, 42 South. 813.”

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice in criminal prosecutions. Bishop says that:

“To permit such evidence would be to put a man’s whole life in issue on a charge of a single unlawful act, and crush him by irrelevant matter which he could not be prepared to meet.”' (1 Bish. Crim. Proc. par. 1124.)

See Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418. Also Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467; Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291.

In the case under consideration the accused did not testify, and it cannot be contended that the testimony was introduced for any other purpose than to aid the state in securing a conviction on the particular charge covered by the information. In Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381, this court said:

“The defendant should have been tried on the facts of the particular case then before the court. The question submitted to the jury was as to the guilt of the defendant on the charge then upon trial, and any reference to any former trial, indictments, or convictions was improper. Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110.”

In People v. Schweitzer, 23 Mich. 301, the Supreme Court of Michigan says:

“The general rule is well settled that the prosecution is not allowed to prove the commission of another and distinct offense, though of the same kind as that charged, for the purpose of rendering it more probable in the minds of the jury that he committed the offense for which he is on trial; and this would be the natural and inevitable effect upon the minds of the jury, of the admission of such evidence, on whatever ground or pretense it might be admitted; and the defendant would thus be prejudiced on the trial of the offense charged by proof, which he has no reason to anticipate, of an offense for which he is not on trial, and to which, when properly called upon to defend, he may have a perfect defense.”

In People v. Flanigan, 42 App. Div. 318, 59 N. Y. Supp. 101, the court says :

“It is an elementary principle of law that the commission of one crime is not admissible in evidence upon the trial for another, where its sole purpose is to show that the defendant has been guilty of other crimes, and would consequently be more likely to commit the offense charged.”

See, also, People v. Romano, 84 App. Div. 318, 82 N. Y. Supp. 749; Kessinger v. State (Tex. Cr. App.) 71 S. W. 597; Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9; State v. Fitchette, 88 Minn. 145, 92 N. W. 527.

The views of this court on this question have been expressed in later opinions by each member thereof. In the case of Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695, decided at the last term of the court, in an opinion written by Doyle, J., this character of conduct upon the part of prosecuting attorneys and trial courts is discussed, and the court there says:

“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. * * * 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.”

In the case of Jelts v. State, 7 Okla. Cr. 734, 123 Pac. 1131, a Per Curiam opinion written by the present presiding judge of this court, we said:

“This court has always been exceedingly liberal with the prosecuting attorneys of .this state, and endeavors always to uphold every proper conviction brought here on appeal. But a prosecuting attorney should not permit his high office to be prostituted in the interest of malice or oppression. Pie should not be guilty of indulging in the character of examination disclosed by this record. It does not make any difference how guilty a man is, he ought to lie tried in a fair and impartial manner, and according to law. Prosecuting attorneys are not charged with the duty of securing convictions by improper methods. They should see that substantial justice is meted out in the manner provided by law, and no conviction should be sought or demanded unless it can be had by compliance with the safeguards and rules established to prevent oppression. A conviction had under the circumstances disclosed by the record under consideration cannot be sustained.”

Undue zealousness upon the part of county attorneys sometimes grows out of the heat of the trial; but just what would prompt a court to permit such proceedings is beyond our comprehension. lie is charged with the duty and it is his sworn duty, to protect the rights of the accused as much as the rights of the people. There is no excuse and little justification for a trial court permitting proceedings of the kind we are compelled to review in this case.

In the case of Hager v. State, ante, 133 Pac. 263, the opinion having been written by Furman, J., the court, among other things, says:

“The doctrine of harmless error will become intolerable if absolute fairness is not accorded defendants upon trial. The idea which some prosecuting attorneys and trial judges appear to entertain, that, when a defendant is upon trial charged with a criminal offense, he has-no rights which courts and prosecuting attorneys are bound to respect, has no foundation in justice or in law. Every man is presumed to be innocent until his guilt has been established in a fair trial to the satisfaction of the jury beyond a reasonable doubt.”

And further:

"The cross-examination in the case at bar is full of insinuations and intimations that appellant 'was guilty of a number of offenses, which could not be otherwise than prejudicial to appellant, and upon this ground alone the judgment of the trial court will be reversed and the couse remanded for a new trial. This court stands squarely for the doctrine of harmless error; but it is equally committed to the doctrine that fairness must prevail in the trial of criminal cases. We will not tolerate police court methods in courts of record.”

We do not want to be called upon again to review records disclosing conditions which have been discussed in these opinions. If a trial court through inadvertence or otherwise permits a conviction to be had in the manner disclosed by the record in this case, and the cases cited, the judgment should be set aside, and a new trial granted. The responsibility is solely his, and that responsibility cannot be shirked.

There are a number of other questions raised by counsel for the plaintiff in error, none of which are likely to recur upon a retrial of this cause. We will therefore refrain from discussing them.

For the error indicated, the judgment is reversed, and the cause remanded, with direction to the trial court to permit the County attorney to file an amended information, and grant a new trial.

DOYLE and FURMAN, JJ„ concur.


text:
    G. C. ALLEN v. STATE.
    No. A-1777.
    Opinion Filed July 26, 1913.
    (133 Pac. 1138.)
    1. APPEAL — Credibility of Witnesses. When a fair and impartial trial is had in a trial court, and no effort is made to impeach the prosecuting witness, either directly or indirectly, an attack in this court upon his credibility is wholly without merit and unwarranted.
    2. HEALTH — Anti-Cigarette Law. The anti-cigarette law was en acted by the Legislature for the purpose of being observed and enforced, and so long as it is on the statutes, it is the duty of public officials to see that infractions thereof are punished as provided.

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

    G. C. Allen was convicted of violating the anti-cigarette law, and appeals.
    Affirmed.

      McKeever & Walker and W. T. Church, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error, G. C. Allen, was tried and convicted at the April, 1912, term of the county court of Garfield county on a charge of having unlawfully sold cigarette papers to one Howard L. Reynolds. His punishment was fixed at a fine of $100.

The material testimony on behalf of the state was by witness J. F. Burford, the substance of which is that he and Reynolds went into the drug store of the accused, in the city of Enid, and drank a coca-cola; that Reynolds asked the accused for some cigarette papers; that the accused reached underneath a cash register, took out two red books, commercially known as “L. L.‘ F.,” and gave them to Reynolds, who paid him 10 cents therefor. The material testimony on behalf of the accused was given by him, and in substance may be stated as follows: That the accused never at any time saw the prosecuting witness in his store, and never sold to an3ffiody with him any article of any kind in response to a request for cigarette papers.

Counsel filed an extended brief in this court wherein they attack the credibility of the prosecuting witness. The record does not disclose a single suggestion that the credibility of the witness was attacked at the trial. No question was asked him on cross-examination, and no witness was offered or questioned relative to his credibility. The members of this court know nothing of the credibility of the respective witnesses.introduced at the trial; and, even if they did, in the absence of any testimony, showing, or contention on the trial, that he was not a credible person, such question cannot be raised, and avails nothing here. As said, supra, there is nothing in the record to indicate that prosecuting witness was otherwise than thoroughly credible.

There are no material errors disclosed by the record. This is the first case that has come to this court upon a prosecution for a violation of this particular statute. If prosecuting attorneys, courts, and juries will follow the example of enforcing this provision of the statute, as set by the county court of Garfield county in this case, the practice of selling these prohibited articles, among many others the Legislature has penalized, would be greatly diminished. It is a violation of the law to sell or give away cigarette papers in Oklahoma, and so long as such a law is in the statute, it should be observed, and the violations thereof punished.

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

DOYLE and FURMAN, JJ., concur.


text:
    R. A. METCALF v. STATE.
    No. A-1746.
    Opinion Filed July 26, 1913.
    (133 Pac. 1131.)
    1. PARTIES TO OFFENSES — Principals, (a) All persons who take part or participate in the commission of an offense are guilty as principals.
    2. INTOXICATING LIQUORS — Illegal Sales — Agents, (b) Any person who acts as a messenger or agent of the buyer in going after, purchasing, or bringing to such purchaser intoxicating liquors in this state is thereby aiding and assisting in the sale of such liquor and may be prosecuted for such sale.

      Appeal from County Court, Bilis County; A. L. Squire, Judge.

    R. A. Metcalf was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      C. B. Leedy and J. P. McLaughlin, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, R. A. Met- ■ calf, was tried and convicted at the March, 1912, term of the county court of Ellis county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $200 and imprisonment in the county jail of 75 days.

The testimony on behalf of the state shows that one E. F. Brenecke went to the City Hotel in November, 1910, which was •owned and operated by the plaintiff in error, and asked the plaintiff in error if he knew where he could get some whisky. That •plaintiff in error said he did not know, but would go to see. That witness gave him a dollar. That he left the room and brought 'back a pint of whisky, set it down, and the witness picked it up and went away. The plaintiff in error, testifying in his own 'behalf, said that he took the dollar and went across the street and gave it to a man named Riley. That Riley came back with him, but that he did not know what became of the whisky.

In the case of Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83, this court held that a person who takes part, participates, or engages in any offense is guilty as a principal, and that it is immaterial whether he has any interest in or receives any financial gain from the commission bf such* crime.

Under the law in this state the plaintiff in error is guilty on his own statement, and it is unnecessary to consider questions raised in his behalf on appeal. No injustice was done, and he ■was not deprived of any substantial right on the trial.

The judgment is therefore affirmed.

DOYEE and FURMAN, JJ., concur.


author: DOYLE, J.

text:
    J. W. JONES v. STATE.
    No. A-1692.
    Opinion Filed July 26, 1913.
    (133 Pac. 1134.)
    1. DISORDERLY HOUSE — Evidence—Reputation. In a prosecution for keeping a bawdyhouse, it is competent for the state to show the general reputation of the house as being a house of ill fame, and that the house is resorted to by people of both sexes who are reputed to be of lewd and lascivious character, and from evidence of the general reputation of the house and of the inmates and persons who resort thereto as being of lewd and lascivious character, the law will infer that such characters resort thereto for lewd and immoral purposes, and that the house is a bawdyhouse. The state is not required to show specific acts of lewdness or prostitution in the house. It-is sufficient if it be shown that the house is commonly resorted to for the commission of acts of immorality, and that the proprietor knows the fact, and either procures it to be done, connives at it, or does not prevent it.
    2. SAME — Circumstantial Evidence — Character. In such a prosecution, it is sufficient to show that others, and not the keeper, committed acts of immorality. That the defendant knew the character of his house and the conduct of the inmates thereof, and knew the character of those who resorted thereto, may be shown circumstantially as well as directly.
    3. SAME — Instructions. See opinion for instructions which, upon the evidence adduced, properly declare the law.
    4. SAME — Evidence—Admissibility. In a prosecution for keeping a bawdyhouse, in violation of Rev. Laws 1910, see. 246/, evidence of the arrest and conviction of a person for frequenting defendant’s house was admissible on the issue whether defendant knew, the character of the inmates.
    5. SAME. In a prosecution for keeping a bawdyhouse, in violation of Rev. Laws 1910, sec. 2467, evidence of the lewd character of defendant’s daughter, who resided in the house with her parents, was properly admitted.
    6. SAME — “Keeper” of Bawdyhouse. A keeper of a bawdyhouse, or house of ill fame, or of assignation, or of prostitution, or other house or place for persons to visit for unlawful sexual intercourse or for any other lewd, obscene, or indecent purpose, means and includes a person who has control, proprietorship, or management of the house in question.

      Appeal from County Court, Jackson County; B. N. Woodson, Judge.

    J. AY. Jones was convicted of keeping a bawdyhouse, and appeals.
    Affirmed.

      Lawson & Dabney, for plaintiff in error.

      Chas. West, Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Jackson county, in which plaintiff in error was found guilty of keeping a bawdyhouse, in violation of section 2467, Rev. Laws 1910, which provides that:

“Any person who keeps any bawdyhouse, house of ill fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene, or indecent purpose, is guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars for each offense.”

On February 15, 1912, in accordance with the verdict of the jury, the court sentenced the defendant to pay a fine of $100.

The evidence shows that the defendant occupied a house in the town of Altus with his wife and daughter that was resorted to by persons of both sexes who were generally reputed to be of lewd and lascivious character, and that the house was commonly reputed as being a house of ill fame; that Verna Jones, known as “Blondie,” the daughter'of the defendant, was generally reputed as being a prostitute; that Nellie Bennett, and Bertha Jackson, and a girl called “Goo Goo” frequently stayed at the defendant’s house, and they were generally reputed to be prostitutes; that S. S. Rogers had been convicted on an information which charged him as a habitual frequenter of a house of prostitution, assignation, and ill fame, to wit, the house of J. W. Jones in the town of Altus, and that he was a frequent visitor at the place. Ten witnesses for the state all testify that the house was commonly reputed as being a house of prostitution, and several of these witnesses testified as to lewd conduct on the part of the inmates, and that large numbers of men frequently visited the place. '

The defendant on his own behalf testified that he worked for the North Western Railroad Company, and had lived for several months at the house in question; that Nellie Bennett stayed there about ten days after she had been in jail, but he did not know that she was a prostitute; that the Jackson girl stayed there three or four weeks and the Goo Goo girl about ten days; that he did not know they were prostitutes, and did not know of the lewd conduct of his daughter and the other inmates of his house; that S. S. Rogers had worked for him and stayed at his house.

That the defendant’s place was a bawdyhouse is established by the evidence, which is overwhelming. The defendant by his own testimony attempted to prove that he had no' personal knowledge of this fact.

Error is assigned upon exceptions taken to instructions given in the court’s charge, which read as follows:

“Third. A keeper of a bawdyhouse, or house of ill fame, or of assignation, or of prostitution, or other house or place for unlawful sexual intercourse or for any other lewd, obscene, or indecent purpose, means and includes a person who has control, proprietorship, or management of the house in question, and it must be shown to you beyond a reasonable doubt that the defendant did so keep the house herein charged before you can lawfully convict him.

“Fourth. You are further instructed that it is not necessary for the state to prove, in order to convict the defendant, specific acts of illicit intercourse; but the character of the place may be shown by the general reputation it has in its neighborhood, and the general reputation of the persons who resort to said place and all circumstances that go directly to prove the conduct of the inmates thereof and those who resort to said place.

“Fifth. You are instructed that it is incumbent upon the state to prove to your minds beyond a reasonable doubt that the defendant had knowledge and acquiesced in any lewd conduct or prostitution that might have been carried on within or about his residence, and if you do not so find beyond a reasonable doubt, then you should acquit the defendant and so say by your verdict. And, in determining the knowledge or acquiescence of the defendant to any such conduct as herein set out, you may take into consideration his opportunity to be informed thereof and the surrounding circumstances under which such acts, if any, were committed, in arriving at your conclusion as to the knowledge or acquiescence of the defendant therein. You are further instructed that it is necessary for the state to show beyond a reasonable doubt that the defendant knew the character of his house and the conduct of the inmates thereof and the character of those who resorted there before you would be justified in convicting the defendant; but it is not necessary for the state to prove actual knowledge on the part of the defendant of the character of his place or the inmates or those who resorted there; but such facts may be shown and proven by circumstances and facts such as will convince you beyond a reasonable doubt that the defendant was bound to have cognizance and knowledge of the conduct of the inmates of the house or those who resorted there for the purpose set out in this information.”

The defendant’s counsel argue- that these instructions are fundamentally wrong, because in effect they inform the jury that the defendant can be held responsible for the conduct of other people when he has no knowledge of their conduct and is in no way responsible for their acts.

We fail to find any force in this argument. These instructions correctly state the law and were as favorable to the defendant as the law permitted. It has been held that in a prosecution for keeping a bawdyhousc a statement in the court’s charge to the jury:

“That every person is presumed to have knowledge of that which' goes on in his own house, and that, if it should be shown that persons continuously resort to such house for immoral purposes, the proprietor of the house would be held responsible for keeping an immoral house”

—is not erroneous. (De Forest v. United States, 11 App. D. C. 458.) We are of opinion the charge of the court constituted a correct and complete exposition of the law of the case.

It is also contended that the court erred in permitting evidence of the arrest and conviction of S. S. Rogers for frequenting the defendant’s bawdyhouse. We think that this was competent evidence to establish the fact that the defendant did have knowledge of the character of the inmates of his house, in connection with the admitted fact that the defendant Nellie Bennett was permitted to stay there after her arrest and conviction as a prostitute, and the record shows that no objection was made to the introduction of this testimony. A man careful of the reputation of his house is not accustomed to permit prostitutes to stay and there receive callers.

Neither did the court err in permitting evidence as to the lewd character of the defendant’s daughter. It was not a question of her lawful right to reside at the home of her parents, but a question of her demeanor while there, and the fact that she was the daughter of the defendant did not destroy the inferential effect of her lewd character and conduct as tending to show the character of the house.

We see no error in the admission of evidence objected to nor in the instructions excepted to. Tt follows that the judgment should be affirmed.

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


author: FURMAN, J.-

text:
    Ex parte ROY BURRIS.
    No. A-2045.
    Opinion Filed July 26, 1913.
    (133 Pac. 1139.)
    ADULTERY — Habeas Corpus — Preliminary Examination — Evidence. Por testimony which justified an examining- court in holding- a defendant to answer a charge of adultery, see opinion.
    Original application for writ of habeas corpus by Roy Burris.
    Writ denied.

      M. L. Matson, for petitioner.

      V. S. Decker, Co. Atty., for the State.
   FURMAN, J.-

This is an original application made to this court for a writ of habeas corpus based upon the ground that the judge of the district court of Creek county is absent from the state. Accompanying the petition is an agreed statement of facts signed by the county attorney of Creek county and the attorney for petitioner. From'this agreed statement of facts it appears that petitioner is confined in the jail of Creek county by authority of a commitment issued by W. K. Root, a justice of the peace of Creek county, as the result of an examining trial held before said justice of the peace, where petitioner was bound over to await the action of the district court of ’ Creek county on a charge of adultery, and his bail was fixed at the sum of $300, which petitioner is unable to give.

It appears from the evidence that petitioner is charged with having committed adultery with Oma Monroe, who was not the wife of petitioner but who was the wife of George V. Monroe, and that this prosecution for adultery was instituted against petitioner and said Oma' Monroe by the said George V. Monroe. The contention of petitioner is that he is not guilty of said charge and that there is no testimony sustaining the judgment of the justi’ce of the peace holding petitioner to answer said charge.

In determining the sufficiency of testimony in any case, the nature of the subject-matter under inquiry must be considered. It is but seldom indeed that direct and positive evidence of adultery can be produced, for persons who have illicit sexual intercourse with each other ordinarily do not commit adulterous acts in the presence of witnesses. Therefore in such cases we cannot reasonably expect to have other than circumstantial evidence as to the commission of adultery. We are of the opinion that the testimony offered in behalf of the state was sufficient to authorize the judgment of the justice of the peace, holding petitioner to answer the charge of adultery. But even if we were in error about this matter, petitioner himself has furnished further evidence as to his guilt, for it is proven that after he was committed to jail he wrote and sent to his code-fendant, Oma Monroe, the following letter:

“My Own Dearest Darling: It seems as the whole world is against us. It just made me sick all over when the judge said what he did. They didn’t have evidence to hold us over and you know that as well as I do. And Dearest that remark he said I made about you, 'There comes my whore, maybe I can get it of- her.’ Dearest you know common sense will teach you that I would have more sense than to make that expression right in front of him and another thing you know I was still setting right by him when you came by and was not standing - by no barber pole as he said I was. Dearest, Matson is going to start habeas corpus proceedings and try and get me out and if he can’t get me out, well I reckon I will have to stand a trial. Dear one, I am going to ask one more favor of you. We nearly starve to death in here and the boys at the office have been getting me a meal now and then and we only get two meals a day and I could eat as much as. they give to four. Now Dear one, if you possibly can, please get me a meal ticket at the Merchants Cafe. You can get one for $3.50 and one meal a day that will last me a couple or three weeks and send me .50 to buy tobacco with if you can. Dear one, how I suffer for your sake and dearest I will hold you up as innocent as long as there is a drop of blood or a breath left in my body. Oh, how I would like to have gotten to him this morning. I would have, made him sajr my wife and then curl up his lip like you was no better than a dog. Dear one when this ordeal is over, I will take you my darling wife where no one knows and start life anew and will be happy wont we dear and if he ever molests us in any way, sort of fashion I will kill him on sight. Dearest I love you more now than ever and God knows I will stand pat and will help you all I can. Dearest, I want to talk to you so bad. Dearest, just to take-you in my arms. Dearest if I had never met you, you would never have had to suffer this humiliation. It is all my fault. God, why was I ever born? Dearest will you forgive me for causing you to suffer so? Dearest I have read both of these books. Now darling please for God’s sake get me that meal ticket for I am nearly starved. My clothes are getting too big for me. I am falling olí fast. If you can’t do anything for me, please write me a letter and send me a book or two for it seems as that you are the only friend I have in this world. I will more than repay you dearest. Do what you can dearest for I am so hungry. Well I will write no more for this time. Remaining forever your own Darling Heart-Broken Brown Eyed Boy. With all my love and a thousand kisses.”

This letter is strongly suggestive of the fact that petitioner had debauched the wife of George V. Monroe. Men who are guilty of such conduct as this are most dangerous members of society. There is nothing in which society has a deeper concern than in the preservation of the integrity of the home and in the protection of the sanctity of the marital relations. A country is simply an aggregation of homes, and no country can rise superior to the sanctity and purity of its homes. Therefore, whenever a man invades the sanctity of a home and debauches the wife of another, he is guilty of treason against society and' becomes an enemy to the human race. The sooner such men are sent to the penitentiary and the longer they are kept there the better it will be for society.

Petitioner in the letter above set out complains bitterly that as the result of his confinement he is losing in flesh and that his clothes are becoming entirely too large for him. If he will take a philosophical view of the situation he can console himself with the reflection that this may not be an unmixed evil, for as his blood becomes thinner and cooler it may have the effect of moderating the ardor-of his affections for another man’s wife and of assisting him in subduing his passions and keeping them within clue bounds, which all good citizens should do. While petitioner may not take this view of the matter, yet if it has 'this effect it will certainly make a better and safer citizen of 'him and keep him out of trouble in the future. Seducing other men’s wives and then threatening to kill the injured husband on sight if he objects to his wife’s defilement are things which the law will not sanction, tolerate, or condone. Such' men must either restrain their passions, leave the state, or expect to spend their time in jails or in the penitentiary.

The letter written by petitioner to his codefendant fully ¡sustains the statement frequently made by this court, viz., that 'illicit love is a most prolific source of crime and assassination, for in this letter petitioner expresses a determination to possess the wife of George V. Monroe, and threatens to kill said Monroe if he attempts to interfere with this unlawful purpose. Tinman experience teaches that when a wife has been seduced she hates her husband and will not hesitate at any means to destroy him in order that she may gratify her illicit love. Many revolting assassinations have taken place in Oklahoma which were prompted by this motive alone, as is abundantly shown by the records of the courts.

The action of the justice of the, peace in committing petitioner to answer the charge of adultery is sustained. The only mistake made by the justice was in fixing the bond of petitioner at $500. It should have been larger.

The petition for a writ of habeas corpus will be denied.

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


text:
      Ex parte J. C. BURROUGHS.
    No. A-2051.
    Opinion Filed July 29, 1913.
    (133 Pac. 1142.)
    HABEAS CORPUS — Nature—Grounds. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law; and a defendant, held by virtue of an information preferred by a proper prosecuting officer in a court of competent jurisdiction, cannot be discharged on habeas corpus on the ground that the evidence adduced upon his preliminary examination was insufficient to show that a public offense had been committed, or probable cause to believe the defendant guilty thereof.
    Application for writ of habeas corpus by J. C. Burroughs.
    Denied.

      A. ]'. Mood, for petitioner.
   DOYLE, J.

This is a petition for writ of habeas corpus, and is filed for the purpose of setting at liberty J. C. Burroughs. Petitioner avers that he is restrained of his liberty, and is unlawfully imprisoned in the county jail of Rogers county by Hiram Stephens, sheriff of said county. It is further averred therein:

‘'That the cause of said restraint and imprisonment, according to the knowledge and belief of your petitioner, is a commitment issued out of the county court of the county of Rogers, state of Oklahoma, by the Honorable Walter W. Shaw, county judge of Rogers county, state of Oklahoma, sitting and acting as a committing magistrate in a certain preliminary' examination, upon a charge in said county court against this petitioner of the crime of larceny, and further upon an information filed in the district court of Rogers county, state of Oklahoma, based upon said preliminary examination so had and held before said Walter W. Shaw as such committing magistrate, as aforesaid, charging this petitioner with the crime of larceny by fraud. Your petitioner further states and alleges that said restraint and imprisonment is illegal and unauthorized, because the evidence produced before said Walter W. Shaw as such committing magistrate, upon said preliminary examination so had and held as aforesaid, wholly failed to show that this petitioner was guilty of the crime of larceny by fraud, or otherwise, or any other crime within the county of Rogers, state of Oklahoma, and your petitioner further says that said evidence was wholly insufficient to raise or sustain reasonable or probable cause for believing this petitioner to be guilty of the crime of larceny, or any other crime, within the state of Oklahoma; that a certified copy of said evidence is attached hereto and made a part hereof; that a like petition has been presented to and heard by T. L. Brown, judge of the second judicial district of Oklahoma, and the relief herein prayed for denied by him. Wherefore your petitioner prays your honor to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment. J. C, Burroughs, Petitioner.”

Section 4893, Rev. Laws 1910, provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in ■either of the cases following: * * * 4th. Upon a warrant or commitment issued from the district court, or any other court of ■competent jurisdiction, upon an indictment or information.”

In this case it appears from the averments of the petition '■that the petitioner is being held by virtue of an information pre:ferred by the county attorney in a court of competent jurisdiction, to wit, the district court of Rogers county, and under the foregoing provision of the statute the writ of habeas corpus cannot be resorted to for the purpose of determining the-sufficiency of the evidence adduced upon the preliminary examination to show probable cause. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, if is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas -corpus cannot be resorted to on the plea that the evidence adduced upon the preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement, or by motion to quash, or motion to set aside the information.

It appearing that the application is insufficient to show that petitioner is entitled to the writ or a rule to show cause, it will be denied.

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