reside, and to repress and restrain all unlawful and disorderly conduct or practices therein;" and to suppress and prevent the violation of all laws and to arrest all persons guilty of violating any law for the suppression or punishment of crime. And it was a willful neglect in the performance of this duty by the defendant for which he was indicted and of which he has been convicted. This duty imposed upon the defendant was not solely to arrest in case a violation of the law had been committed in his presence. There was specifically imposed upon him the duty to carefully observe and inspect all houses of ill-fame or prostitution, and to repress and restrain all unlawful and disorderly conduct or practices therein, and to arrest all persons guilty of violating any law for the suppression or punishment of crime. Knowledge that a complaint had been made against this house was communicated to the defendant by his superior officer and he received directions to inspect this house and to obtain evidence of its character if possible. In the face of the evidence offered by the prosecution, if that evidence is to be credited, it is perfectly clear that this officer either failed in his duty to observe and inspect this house, for the most casual inspection would have disclosed to him facts which would clearly have established the character of the house; or, having inspected and ascertained its character, he failed to report what he observed to his superior officer, and failed to perform the duty that then rested upon him of obtaining a warrant for the arrest of the keeper of the house, or of himself making an arrest. He was indicted both for failing to inspect and observe the house, and also for failing to suppress it or arrest the inmates, and if the evidence of these witnesses called by the prosecution is to be believed, the conclusion irresistibly follows that the defendant willfully neglected his duty in one or the other of the particulars mentioned. If the testimony of Whitney is true, the motive of the defendant in thus neglecting his duty as a police officer is quite apparent. To sustain this conclusion it is not necessary to show that this defendant

had personal knowledge of the character of the house such as would justify him in arresting any one upon the premises without a warrant, and failed to make an arrest. What he was bound to do was to observe and inspect the house and to repress and restrain all unlawful conduct or practices therein. For a failure to perform either of these duties he was guilty of a misdemeanor under section 117 of the Penal Code. If, instructed by his captain to inspect and observe this house and report upon its character, he failed to perform that duty and made a false report to his captain, he would be guilty of a violation of this section of the Penal Code. If he inspected it and ascertained its character, as from the evidence offered by the prosecution he necessarily would have done, it was his duty to report the facts to the captain, and, if the evidence was not sufficient to justify him in arresting any particular individual, to obtain a warrant for the arrest of the person who was the owner or keeper of the house. He could have repressed or restrained the commission of illegal acts upon the premises by obtaining a warrant for the arrest of those keeping the house, when he had obtained knowledge of facts which would justify the inference that the house was a disorderly house within the meaning of the statute, and assuming that the witnesses for the prosecution testified truthfully to the occurrences there, it is impossible to believe that the defendant could have made any serious effort to obtain evidence as to the character of the house without the discovery of such facts as would justify him in applying for a warrant.

In submitting the case to the jury the court, after reading to them the section of the charter to which attention has been called, and the section of the Penal Code under which the defendant was indicted, said, "if any one of the three questions of fact which I will submit to you be not proven to your satisfaction beyond a reasonable doubt, the defendant cannot be found guilty. If all three are proven to your satisfaction beyond a reasonable doubt, he should be convicted of the charge

against him." These three questions were, first, "Was the house number 148 West Thirty-third street a house of ill-fame, resorted to or occupied by women for lewd purposes?" The second, "Did the defendant have knowledge of its character?" and, third, “Did he, with knowledge of its character, willfully neglect and omit to perform the duty enjoined upon him by law in reference to that house?" The court thus imposed upon the prosecution the obligation of proving, beyond a reasonable doubt, that the defendant had knowledge of the character of this house, and, with knowledge of its character, willfully neg lected and omitted to perform the duty enjoined upon him by law with reference to it. This certainly was as favorable a view of the law as the defendant was entitled to. The court then, at the request of the defendant, charged: "In order to obtain a warrant for the arrest of any person the defendant must make an oath. In order to make an oath he must know that what he swears to is true, and in order to swear to it he must have evidence, and without evidence the whole foundation of the prosecution fails," and that the omission or neglect in order to be willful, within the meaning of the statute, must be with knowledge and with criminal intent. There was no exception to the charge, and the only exceptions taken by the defendant were to the refusals to charge certain requests. The defendant relies upon exceptions to refusals to charge the sixth and ninth requests. The sixth request is: "The defendant might have had the strongest moral certainty in the world that the house No. 148 West 33d street was a house of prostitution, yet if he did not know of somebody who can swear of his own knowledge to the facts of which the defendant was morally certain, the defendant had no right to make an arrest. Such an arrest would have been wanton and an indefensible act of false imprisonment." This the court refused in the language requested. The ninth request was: "The defendant would not have been justified in making an arrest based upon no other evidence than that of the reputation of the house No. 148

West 33d street as a disorderly house, house of ill-fame or house of prostitution, nor upon evidence insufficient in law to secure a conviction, should he have made such an arrest." This the court also refused to charge. I do not think that, conceding the sixth request to have been pertinent, it contains a proper statement of the law. The defendant was a police officer, and as such had power to arrest a person guilty of a misdemeanor committed in his presence. If he had personal knowledge of the fact that this house was a house of prostitution, it was not only his right but his duty to arrest those maintaining the house. Yet this proposition eliminates this personal knowledge of the defendant. The court was asked to say if the defendant did not know of somebody who could swear of his own knowledge to the facts of which the defendant was morally certain, the defendant had no right to make an arrest." By section 177 of the Code of Criminal Procedure it is provided that a peace officer may, without warrant, arrest a person for a crime committed or attempted in his presence; when the person arrested has committed a felony, although not in his presence; when a felony has, in fact, been committed, and he has reasonable cause for believing the person to be arrested to have committed it. If this was a disorderly house, and the defendant had personal knowledge of that fact, it was his duty to arrest the person maintaining it whether he knew of anybody else who could swear to the facts or not. This whole case was tried upon the theory that the defendant did have knowledge of the fact that a crime had been committed, and, having such knowledge, willfully refused to make an arrest or suppress the house, as required by law, and it would have been misleading to charge that he was not justified in making an arrest unless he had the evidence of some other person as to the facts to justify the inference that a crime had been committed. But this request to charge was refused in the language proposed, and the court had already charged the jury that to convict the defendant they must find that the defendant

had knowledge of the character of this house. There was evidence that would justify the jury in finding that this defendant had personal knowledge of the character of the house and took an active part in endeavoring to prevent it from being interfered with.

I also think the court was justified in refusing to charge the ninth request. The duty of the defendant was not, under the law, limited to making an arrest, and the court had instructed the jury that, unless the defendant had evidence of the character of the house, "the whole foundation of the prosecution fails." The refusal to charge these requests was not an instruction to the jury that the officer had power to arrest any one in this house without personal knowledge that an offense had been committed, or without having obtained a warrant from a magistrate, and the jury had been correctely instructed upon the duty of the defendant and what the jury must find to justify a conviction, and, in view of the charge as given, we do not think the refusal to charge this request was error.

The next exception relied upon by the defendant is the refusal to charge that "This presumption of innocence is legal proof or evidence." Upon that subject the court charged the jury: "The defendant is entitled to the presumption of innocence, and that presumption rests with him throughout the case and until it be finally overborne by evidence which will satisfy the jury of the guilt of the defendant, and then the presumption is overthrown," and then at the request of the defendant the jury were instructed that "This presumption or proof of innocence created by law renders it unnecessary for the defendant to testify as a witness to his innocence," and "To overthrow this presumption of innocence there must be legal evidence of guilt carrying home to the mind of every juror a degree of conviction short only of absolute certainty." This certainly presented a question of presumption of innocence more strongly than was justified, and the refusal to say that the presumption is legal proof or evidence was not error.