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ordinance, the ambiguity, under the familiar | which it is manifest that after judgment of rules of construction, ought to have been conviction-that is, after a final judgment resolved in favor of the defendant, not by the jury, but by the court whose duty it was to construe the ordinance.

The defendant requested the court to do so, and to instruct the jury to return a verdict of not guilty; the evidence, without dispute, showing that the liquor was sold before 12 o'clock midnight, solar time. The court refused this request. . Then the defendant also requested the court to charge the jury the difference in time, between solar and standard time, and to charge them that the presumption is that solar time was intended by the use of the language in the ordinance, "12 o'clock midnight," etc. This request was also refused. The court declined to construe the ordinance, and failed and declined to charge the jury which time, solar or standard, was intended, or which should be considered by them in determining the guilt or innocence of the defendant. It charged the jury that the burden was on the plaintiff to show that the defendant sold the liquor "after the hour of 12 o'clock midnight, and before the hour of 6 o'clock following," and that if they found that he sold the liquor "within hours prohibited by the ordinance," and that such sale was not for medicinal purposes, they should find him guilty.

The construction of the ordinance, in respect of its intended meaning as to solar or standard time, or the time which should be considered in determining the case, was therefore left entirely to the jury, wholly unaided and uncontrolled by the court. Instead of so leaving the matter to the jury, I think the court should have determined it.

has been entered against a defendant in a criminal prosecution-he no longer need be, nor is, protected by the state against costs. Nor is there any good reason why the taxpayers of this state should provide the means whereby those who are convicted of crime may have their cases reviewed on appeal by this court, unless such persons avail themselves of the statutory provision intended for those who are impecunious, and hence unable to pay the costs on appeal. By referring to sections 727 and 1016, it will at once be seen how and under what circumstances one accused of crime, even after conviction, may escape the payment of costs. We know of no other way that one convicted of crime may escape the payment of costs after final judgment, except by following the methods pointed out by the sections referred to. Moreover section 5155 provides that any one who is convicted of a crime may be punished by fine or imprisonment, or by both, and that such punishment may be with or without costs; and section 4925 provides that if costs are imposed the payment thereof may be enforced by execution, as in civil cases. There seems to be no doubt that after final judgment that one who has not shown himself unable to pay costs by reason of his impecuniosity may, and ordinarily should, have the costs taxed against him. While in this court no costs may be taxed for clerk's services, yet at least the costs provided for by rule 11 (97 Pac. viii) of this court, which the state is required to pay for printing briefs, should be taxed against appellant.

As the judgment entered by the clerk of this court in this case in terms is broad enough to cover all costs, it is ordered that the same be, and it hereby is, modified so as to include only the costs that may be taxed, as provided by rule 11 of this court.

In view of what has been said, it follows that the application for a rehearing should be denied. It is so ordered.

MCCARTY, J., concurs.

sents.

STRAUP, J., dis

(18 Wyo. 440)

DICKERSON v. STATE. (Supreme Court of Wyoming. June 14, 1911.) 1. CRIMINAL LAW (§ 1064*) — APPEAL — ASSIGNMENT OF ERROR-SPECIFICNESS.

On Application for Rehearing. FRICK, C. J. [7] Appellant has filed an application for rehearing and for a modification of the judgment rendered against him for costs. He asserts that no costs can be taxed against him under the Constitution and statutes of this state. Article 1, § 12, of the Constitution of this state, so far as it relates to costs, provides: "In no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed." (Italics ours.) Compiled Laws 1907, is a transcript of the foregoing provision. Section 4966, the only other section that directly relates to the taxation or recovery of costs, provides that in criminal cases both the clerk of the district court from which the appeal is taken, and the clerk of this court, must perform all the services usual in appeal cases without charge. It follows, therefore, that in criminal appeals no costs can be taxed for fees or costs that are usually 2. CRIMINAL LAW (§ 1169*)-APPEAL-ADMIStaxed as clerks' fees. Where defendant was charged with perjury There are other statutory provisions from alleged to have been committed in a prosecu

An application for a new trial for errors at law occurring at the trial to which defendant at the time excepted was too general to had been called to alleged error in admitting show on appeal that the trial court's attention particular evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.*]

SION OF EVIDENCE-PREJUDICE.

tion for rape, he was not prejudiced by the admission of certain of the testimony in the rape case to show the materiality of defendant's testimony on which the charge of perjury was based, without an instruction limiting it to that purpose, where the same witnesses who were sworn in the rape case were also sworn in the perjury case, and testified to substantially the same facts.

tion, a demurrer, a stipulation as to the use by either party of evidence given before the examining magistrate, the particulars of such evidence not being stated therein, and several subpoenas for witnesses, with the precipe therefor respectively. The journal entries were introduced without objection, and one [Ed. Note. For other cases, see Criminal of such entries shows the verdict. It does Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § not appear that any of the papers so offered 1169.*] were read in evidence. In People v. Macard,

3. CRIMINAL Law (§ 1064*)—APPEAL-MOTION 109 Mich. 623, 67 N. W. 968, disposing of a FOR NEW TRIAL-GROUNDS-INSTRUCTIONS.

An instruction not mentioned in the motion for new trial except as one of a group of instructions excepted to will not be reviewed on appeal where nearly all the instructions contained in the group correctly stated the law..

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2683; Dec. Dig. § 1064.*] 4. CRIMINAL LAW (§ 1086*) — APPEAL-EVI

DENCE.

The exclusion of evidence would not be reviewed where the record fails to show that any ruling was made or invoked on a proper offer of such testimony.

[Ed. Note. For other cases, see Criminal
Law, Cent. Dig. § 2794; Dec. Dig. § 1086.*]
On petition for rehearing. Denied.
For former opinion, see 111 Pac. 857.

like objection, the court say: "These papers were not read in evidence, and appear to have been offered for the sole purpose of showing the regularity of the proceedings in that (the former) case. Comment is unnecessary." We make the above statement as to the offer and objection merely to explain the situation, and the improbability that any prejudice to the plaintiff in error could have resulted from the admission of the papers covered by the objection. But we adhere to our former conclusion that the matter is not properly here for consideration.

[2] It is strongly urged that there should be a rehearing for the purpose of a re-examination of the objection to the admission

N. R. Greenfield and Samuel A. King, for in evidence of certain testimony given upon plaintiff in error.

the trial of the defendant wherein the perjury is alleged to have been committed. POTTER, J. [1] The plaintiff in error has That testimony was offered and admitted for filed a petition for rehearing in this case. the purpose of showing the materiality of In the fourth paragraph of the original opin- the alleged false statements of the defendion (111 Pac. 857), it was said as to the con- ant, and we held that the error in admitting tention that the trial court erred in admit-it without an instruction properly limiting ting the files in the case in which the perjury its effect was not prejudicial, for the reason was alleged to have been committed that it that the same witnesses testified in the preswas not made ground in the motion for new ent case to substantially the same facts. It trial, and need not be considered. It is now is earnestly contended that in so holding this contended that this was erroneous for the court erred, and it is urged that the testireason that it was included in the motion mony could have served no other purpose for new trial by the general specification: than to inflame the minds of the jury to a "Errors of law occurring at the trial of said point where their reason would become praccause and to which said errors of law and tically dethroned, and passion, hatred, ill rulings of said court the defendant at the will, and prejudice would control their detime duly excepted." It has been uniformly liberations, as a result of the recital of the held by this court that such a specification facts of the assault claimed by the prosecuis too general and indefinite to show that the trix to have been perpetrated upon her by question was brought directly to the atten- the defendant. Counsel say in the present tion of the court below. Boburg v. Prahl, 3 brief: "The fact that defendant's counsel Wyo. 325, 23 Pac. 70; C., B. & Q. R. Co. v. was protesting before the jury rightfully Morris, 16 Wyo. 308, 93 Pac. 664. The papers against the introduction of this incompetent were introduced for the purpose, no doubt, of testimony, and the fact that he was insisting showing the regularity of the proceedings in that proper instructions should be given the the case wherein it was charged that the jury as to the plain, legal, and just rights to perjury had been committed. No objection which the defendant was entitled, and the was offered to the information and verdict; jury being permitted to constantly observe the objection going only to the other papers. counsel's repeated defeats at the hands of The argument in support of this exception the court, amounted to nothing less than a was based mainly upon the admission of the statement by the court to the jury that the instructions in the former case. While it positions of the plaintiff in error and his appears that the instructions were among counsel were wrong, and they were therefore the papers identified for the purpose of the at liberty to draw any inference or concluoffer, they are not in this record, and it is sion from the testimony that they saw fit, therefore to be assumed that the offer as to no matter how detrimental or unjust or them was abandoned. All of such files that prejudicial it might be to the defendant It we find in the record here are the informa- I was equivalent to a statement to the jury *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-29

that the charges made against the plaintiff in error were true, or he would have denied them, and, being true, he ought to have been convicted of rape, and, if not of rape, then of perjury." And counsel refer us to the principle that a presumption of prej udice arises from the admission of irrelevant or illegal evidence, citing 12 Cyc. 912, and other authorities, and particularly urge as the correct rule a statement found in the opinion in the case of People v. Smith, 172 N. Y. 210, 64 N. E. 814, to the effect that the burden of showing that the illegal and improper evidence which was received was harmful is not upon the appellant, but that it was harmless, and could by no possibility have prejudiced him must be established by the other party (the state). Counsel also cite Kirby v. People, 123 Ill. 436, 15 N. E. 33, and quote therefrom with other parts of the opinion the following: "The rule is not, as quoted by the state's attorney, that it is only 'when the court can see that the admission of improper evidence or the exclusion of proper evidence has worked an injury to the party complaining that the judgment will be reversed,' but it is that the court will not affirm where error has intervened, unless it shall appear from the whole record that such error could not reasonably have affected the result. When there is error, it is presumed to have improperly affected the result; but this presumption is rebutted where, from the whole record, it is manifest that no improper result to the party complaining could reasonably have followed."

where the indictment does not set out the facts whence the materiality judicially appears, "the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question, whereupon the court, not the jury, will decide as of law whether or not what the defendant is shown to have testified to therein was material. Yet practically, as fact is involved with the law, the question must generally be passed on with the rest by the jury under instructions from the court." While the materiality of the testimony on which perjury is assigned is a question of law for the court, it may become a mixed question of law and fact, in which case the court should submit it to the jury with proper instructions. 9 Ency. of Ev. 756; Young v. People, 134 Ill. 37, 24 N. E. 1070; McAvoy v. State, 39 Tex. Cr. R. 684, 47 S. W. 1000; Washington v. State, 23 Tex. App. 336, 5 S. W. 119. Judge Henderson, who delivered the opinion in the Texas case of McAvoy v. State, supra, states the rule in his dissenting opinion in Freeman v. State, 43 Tex. Cr. R. 580, 67 S. W. 499, as follows: "The question as to the materiality of the alleged false testimony is for the court, but this may become a mixed question of law and fact, and may properly be submitted to the jury; the court informing the jury that, if they find certain facts to be true, then the alleged false testimony became material. Ordinarily the question of materiality is not complicated; but merely on introducing the indictment and plea the materiality of the Counsel seem to assume that we held the alleged false testimony becomes obvious. evidence given upon the former trial, the✶✶ ✶ But if the alleged false testimony part which was offered and admitted in this case, to be incompetent, and that it was error to permit it to be read in the presence of the jury; and there is a statement in the former opinion from which that might perhaps be inferred unless taken in connection with other statements following it. It was said that the evidence was competent upon the question of the materiality of defendant's evidence upon which the perjury is assigned, but was not competent for the purpose of proving the perjury, and that it was error to permit such evidence to be read in the presence of the jury in the absence of an instruction limiting its effect. The form in which the proposition was stated leaves it open to misconstruction, for we do not think that the error consisted in admitting the evidence for the purpose for which it was offered, or in permitting it to be read in the presence of the jury, but in failing to properly instruct the jury either at the time it was received or later in the trial as to the purpose and effect of such evidence and the consideration to be given it by the jury. State v. Brown, 111 La. 170, 35 South. 501; People v. Macard, 109 Mich. 623, 67 N. W. 968; State v. Vandemark, 77 Conn. 201, 58 Atl. 715; 2 Bishop's New Cr. Proc. § 935; 9 Ency. of Ev. 756-759.

bears not immediately on the issue, but upon some collateral issue, which in its turn becomes material as illustrating or bearing on the main issue, then the materiality of the testimony may become more complicated, and enough of the proceedings transpiring in the lower court should be shown in order to establish the materiality of the alleged false testimony to the issue then being tried. * ** 2

Bearing in mind that the sole question here is as to the materiality of the alleged false testimony, the fact then to be proved is how it became material; and the solution of this question can be arrived at solely from the pleadings and evidence delivered on the trial, and bearing on that issue. Of course, only so much of the evidence as tends to prove the issue should be admitted." It may be conceded that the testimony shown to have been given by the prosecutrix in the rape case and her physician, which was admitted to show the materiality in that case of the testimony of defendant upon which the charge of perjury was based, would be prejudicial to the defendant, without a proper instruction as to the purpose for which it might be considered, had the same witnesses not been sworn in the present case, and had they not testified to the same facts.

stantially the same facts in this case, and expressed in that opinion, and we are not what is perhaps more significant the details convinced that there is any good reason for of the assault upon the prosecutrix in the granting a rehearing. With reference to rape case were brought out in her testimony the testimony of the deceased witness, Dr. given by her in the present case on persistent Kieffer, given upon the former trial of decross-examination by defendant's counsel. As fendant, it may be said that, if the action it covered practically the entire ground of or remarks of the court deprived the defendthat part of her former testimony which had ant of the benefit of that testimony, it does been admitted to show materiality, and did not appear to have been so injurious as not vary therefrom, if such facts would have counsel seem to think, for Dr. Shingle, who the effect upon the minds of the jury as was present at the examination of the destated by counsel, the verbal testimony of fendant by Dr. Kieffer and assisted in makthe prosecutrix on the trial of the presenting the tests, testified in such a manner as case would more likely have that effect than to place before the jury the fact that neither the mere reading from the transcript of her Dr. Keiffer nor himself found any germs of former testimony by the stenographer. We the disease in question, and the only subcannot believe, therefore, that the error in stantial matter in the testimony of the denot limiting by instructions the consideration ceased witness, as shown by the offer thereto be given the former testimony could have of, of which the defendant was deprived, affected the result prejudicially to the de- was the opinion of that witness as to the fendant. On the contrary, we think it clear- probabilities of the defendant having had the ly appears that no improper result could disease at the time of the assault claimed reasonably have followed from the error with to have been made upon the prosecutrix in reference to that testimony; and this equally the rape case; and, as to that, the defendapplies to the former testimony of Dr. John- ant had the benefit of the testimony of Drs. ston. While it is true that there was no Shingle and Desmond, who were produced instruction definitely restricting the jury in as witnesses in his behalf. their consideration of the evidence given on the former trial of defendant, it appears that in the colloquy between the court and counsel when it was offered it was stated that it was offered and admitted for the purpose of showing the materiality of the alleged false testimony of the defendant on that trial. We do not hold that this was equivalent to a definite explanation or instruction to the jury. But we adhere to the conclusion that the error above discussed was not prejudicial.

[4] But we do not decide the question as to the admissibility of Dr. Kieffer's testimony, for the reason that in our opinion the record fails to show that any ruling was made or invoked upon a proper offer of such testimony.

Rehearing will be denied.

BEARD, C. J., and SCOTT, J., concur.

RUSSELL v. STATE.

(19 Wyo. 272)

[3] The exception to instruction No. 3 re (Supreme Court of Wyoming. June 14, 1911.) quested by the prosecution was disposed of in our former opinion upon the principle that as that instruction was not mentioned in the motion for new trial except as one of

a group of instructions excepted to, and as the others, or, as stated in the opinion, "nearly all the instructions contained in this group complained of correctly state the law," the correctness or incorrectness of the third instruction is not properly presented by the record. The instruction thus complained of defined "reasonable doubt." Our attention is called to the rule followed by this court in Palmer v. State, 9 Wyo. 49, 59 Pac. 793, 87 Am. St. Rep. 910, viz., that where the instructions for the state present as a whole an erroneous view of the law as applied to the facts of the case on trial a general objection to such instructions is sufficient. We do not think that rule applicable to the case at bar.

We have carefully considered the able brief filed in support of the petition for rehearing upon the other points discussed in the former opinion, but remain satisfied with the conclusions and the reasons therefor as

1. INTOXICATING LIQUORS (§ 169*) SALES WITHOUT LICENSE-PERSONS LIABLE-STATUTES.

Under Comp. St. 1910, § 2832, providing that no person shall directly or indirectly sell intoxicating liquors without a license, and that in case of violation by any corporation every officer or employé conniving at any sale shall be subject to the punishment imposed, one having the possession and control of liquor for a corporation, and personally receiving orders therefor, and delivering the same to the persons giv ing the orders, and receiving the money for the liquors, is guilty of selling liquor without a license, where neither he nor the corporation has a license.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 169.*]

2. INTOXICATING LIQUORS (§§ 172, 239*) — SALES WITHOUT LICENSE-SALES BY CLUBS.

without a license, showed that the persons purWhere accused, charged with selling liquor chasing the liquor were members of a club, and that persons could not procure liquor from accused until they joined the club, organized to promote the diffusion of useful knowledge among its members and to establish and maintain a place of amusement, and there was evidence that the premises occupied by the club merely consisted of a large room in which there was a bar, a back bar, a cigar case, and tables and chairs, and that at the time of the sales in

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

question there were present in the room many people drinking liquor, a charge that a club could not lawfully sell liquor without a license to its members, where the selling was the principal object of the club, and to be lawful the club must in good faith be organized for a lawful purpose, other than the sale of liquor, and where the dispensing of liquors to its members is merely incidental, was sufficiently favorable to accused; and where the jury found that the main object of the club was to sell liquor to its members accused was properly convicted, for his acts in furnishing liquor to the members were sales, within the statute prohibiting sales without a license.

[Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. §§ 172, 239.*]

3. INTOXICATING LIQUORS (§ 223*)-EVIDENCE -ADMISSIBILITY.

Where the information charging sales of liquor without a license charged four separate sales to particular individuals, the state, as a general rule, must prove the sales as charged,

and evidence of other sales was inadmissible.

BEARD, C. J. In this case the plaintiff in error, Walter Russell, was charged with the crime of selling intoxicating liquor without a license therefor. The information is in four counts, charging four separate sales of whisky. The cause was tried to a jury, and a verdict of guilty on each count was returned, and the defendant (plaintiff in error) was fined in the sum of $150 on each count, and he brings error.

The information in this case is in the same form, and the record is in the same condition, as in the case of James Vines v. State, just decided, which is referred to for our Conclusions on the motion to strike the bill of exceptions from the record, and the sufficiency of the information. In the present case it is contended that the evidence shows that the alleged sales were made by the

[Ed. Note. For other cases, see Intoxicating Dietz Club, a corporation, and that as the Liquors, Cent. Dig. § 273; Dec. Dig. § 223.*]| defendant is charged individually, and not 4. INTOXICATING LIQUORS (§ 226*)—EVIDENCE as agent or employé, the evidence is insuf-ADMISSIBILITY. ficient to establish the charges contained in the information.

Where accused sought to prove that sales of liquor without a license were made by him, as an agent for a club, to members only, and that the transactions were not sales within the statute, evidence of other sales and of the kind of business in which the club was engaged, and of the manner in which the same was conducted, was admissible.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 226.*]

5. CRIMINAL LAW (§ 1169*)—Appeal—ErrO'NEOUS ADMISSION OF EVIDENCE.

The error in admitting evidence in chief is cured by evidence of accused, rendering such evidence admissible in rebuttal.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. 8 1169.*]

6. CRIMINAL LAW (§§ 684, 1153*)-EVIDENCEORDER OF PROOF. The rule that, where the state introduces evidence in anticipation of a defense, it should be required to produce all of its evidence on the subject, and should not be permitted to give part of it in chief and part in rebuttal, is not an arbitrary one, but the trial court is allowed latitude in the exercise of its discretion; and, in the absence of abuse of discretion, its ruling will not be disturbed on appeal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1618, 3063; Dec. Dig. §§ 684, 1153.*]

7. CRIMINAL LAW (§ 1214*)-EXCESSIVE PUNISHMENT STATUTES.

A statute imposing a fine of $150 for a misdemeanor and permitting the imposition of such fine for each offense committed on the same day is not invalid, as imposing excessive punishment.

[1] The defendant was prosecuted under the provisions of the statute which declare that: "No person or persons within the state, directly or indirectly, in person or by agent or employé, shall vend, sell, barter or dispose of for any pecuniary advantage, any spirituous, malt, fermented or intoxicating liquors or wine without first obtaining a license therefor as provided in this chapter. Every person who shall violate any provisions of this section shall be fined in the sum of one hundred and fifty dollars, together with the costs of suit, for each and every offense, and shall be confined in the county jail until such fine is paid, or until otherwise discharged according to law. In case of any violation hereof by any corporation, every officer, agent or employé making, or in any way countenancing or conniving at any sale or sales in violation hereof shall be deemed and held a person making such sale or sales liable to the pains and penalties herein imposed." Section 2832, Comp. Stat. 1910. This contention is based upon the language contained in the last sentence above quoted; and it is argued that the information in such case must charge

the sales to have been made by the corporation, and that the defendant was an officer, agent, or employé of the corporation and made, countenanced, or connived at such

[Ed. Note. For other cases, see Criminal sales. But we do not agree with that conLaw, Cent. Dig. §§ 3304-3309; Dec. Dig. § 1214.*]

Error to District Court, Sheridan County; Roderick N. Matson, Judge.

Walter Russell was convicted of selling intoxicating liquor without a license, and he brings error. Affirmed.

Enterline & La Fleiche, for plaintiff in error. D. A. Preston, Atty. Gen., and C. A. Kutcher, Co. & Pros. Atty., for the State.

tention. In the case at bar, the defendant had the possession and control of the liquor, personally received the orders therefor, delivered it to the parties, and received the money therefor; and in such case it makes no difference whether he acted for himself or as agent or employé of another person or corporation, if neither he nor his principal had a license. If his principal had a license, that would protect him in making the

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