numerous, we shall cite but a few in which the principle involved is illustrated, namely: People v. Shaw, 57 Mich. 403, 24 N. W. 121, 58 Am. Rep. 372; People v. Shaughnessy, 110 Cal. 598, 43 Pac. 2; People v. Berlin, 9 Utah, 383, 35 Pac. 498; People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 546. In the latter case the authorities are in part collated. Our statute (section 4355, Comp. Laws 1907) is in effect, no more than a definition of larceny at common law. In view of the authorities, the jury were also justified in finding that there was a conspiracy entered into among the five individuals who were concerned in the taking of the money belonging to the brothers. (4 Elliott on Evidence, sections 2937, 2938, and 3 Ency. of Evidence, 427-432.) While we cannot devote the space to refer specifically to the multiplicity of facts bearing upon the alleged conspiracy, we have no hesitancy in stating that, in view of the whole evidence, no other conclusion than that of the guilt of the defendant could well have been arrived at by any impartial jury; nor could they for the same reasons have arrived at any other conclusion than that a conspiracy existed. To say that the taking of the money, under the circumstances of this case, does not constitute larceny, would be to say that the commandment "thou shalt not steal" is a delusion, and our statute upon the subject a farce. As was said by Mr. Justice Campbell in a similar case, namely, People v. Shaw, 57 Mich. 406, 24 N. W. 122, 58 Am. Rep. 372:

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"We do not think it profitable to draw overnice metaphysical distinctions to save thieves from punishment. If rogues conspire to get away a man's money by such tricks as those which were played here, it is not going beyond the settled rules of law to hold that the fraud will supply the place of trespass in the taking, and so make the conversion felonious."

So in this case we would, indeed, lose sight of substance, and follow a mere shadow, if we held that the money was won by the defendant at a game of cards in which all the players risked their money and the best hand won. It is

clear to us that the Scotchman never had a chance to win, that it was not intended that he should win, and that he was the only one of all the players that actually risked anything or could lose a farthing. To hold, therefore, that such a game constitutes merely gambling, and that the offenders are punishable only for that offense, would be to hold that the intent with which an act is done is not to be looked to to determine its criminality, but that the name by which it is known alone controls. We are not prepared to hold any such doctrine. The objection that the acts proved did not constitute the crime of grand larceny, and that no conspiracy was proved to have existed between the gamblers, cannot be sustained.

In addition to the foregoing, there are 169 other errors assigned. While we always endeavor to pass upon all the errors that are assigned and argued and to comply with the constitutional requirement of giving the 6 reasons for our conclusions, we nevertheless must limit the discussion to assignments that contain merit. After a careful perusal of the record, we are fully convinced that, while a very few of the assignments may constitute what are termed as technical errors, not a single one of all those that are assigned in view of the whole record constitutes prejudicial error. The defendant was in no way prejudiced in any substantial right by any of the court's rulings upon the trial, nor by any instruction given or refused, nor by the conduct of the Attorney General, of which complaint is made. As an illustration of one of the numerous rulings of the court in admitting evidence, the admission of which it is now strenuously insisted constituted error, both with regard to the evidence admitted and as to the misconduct of the prosecuting attorney in propounding a question, the following will serve as a sample: At the trial the defendant put in issue his general reputation for honesty, integrity, and fairness as a gambler. To prove such reputation, he called another gambler who testified of his acquaintance and long association with the defendant, and that the de

7

fendant's reputation as an honest and fair gambler among his associates and the gambling fraternity generally was good. On cross-examination the witness was questioned at some length with regard to his association with the defendant, and was, among other things, in substance, asked the following question, which was permitted to be answered over defendant's objections, namely: Whether it was not true that the only association the witness had with the defendant for the three months preceding the acts in question was that they smoked opium together in Plum alley, a disreputable resort in Salt Lake City. To this the witness answered "No." The question was again asked in another form, and the objection thereto was sustained. It will be observed that the only fact inquired about by the prosecuting attorney was thus sal not to exist; that is, instead of establishing the fact, the testimony was to the effect that such fact did not exist. Suppose the witness had been asked whether it were not true that the defendant was a thief, and the answer had been "No," would it have been prejudicial error to have admitted the answer? No one would so seriously contend, although it were conceded that the question was wholly improper; but we cannot pause to give further illustrations, and will not devote either time or space to a further discussion of the errors assigned. We will add, however, that the instructions were fair and covered every phase of the case, and the defendant's rights were guarded at all points. In the trial of the case, if any errors were committed in the admission or exclusion of evidence, the State had far more grounds for complaint than the defendant. The rulings upon material points of the evidence were all in favor of the defendant where there was any question at all with regard to the admissibility of the proffered evidence. If the ob jection was to the form of the question, the defendant's objection usually prevailed, as well as when it related to the substance, unless the objection was wholly without merit. The state in many instances was not permitted to ask lead

ing questions when nothing was sought by them except to establish a negative.

The whole record satisfies us that the defendant has had a full and fair trial, that he has not been prejudiced in any substantial right, and that the judgment of conviction ought to be, accordingly is, affirmed.

STRAUP, C. J., and MCCARTY, J., concur.

STATE OF UTAH, Respondent, v. ALEXANDER JUSTESEN, Appellant.

No. 1963. Decided January 12, 1909 (99 Pac. 456).

1. PERJURY-EVIDENCE-RECORD OF CAUSE IN WHICH PERJURY WAS COMMITTED-ADMISSABILITY, On a trial for perjury the record of the cause in which the alleged perjury was committed is admissible to show the jurisdiction of the court, the regularity of the proceedings, and the materiality of the alleged perjured testimony, but the record cannot be considered as proof of perjury. (Page 108.)

2. PERJURY-EVIDENCE-INSTRUCTIONS.

The court on a trial for

perjury must charge that the record of the cause in which the perjury was committed was received in evidence only to show the jurisdiction of the court, the regularity of the proceedings, and the materiality of the perjured testimony. (Page 108.)

3. CRIMINAL LAW-HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE. On a trial for subornation of perjury, the error in receiving in evidence, the demurrers to the complaint and answer in the action in which the perjury was committed was not prejudicial to accused. (Page 108.)

4. CRIMINAL LAW-HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE. The admission of immaterial evidence is no ground for reversal of a judgment of conviction, unless the evidence tends in some way to prejudice the rights of accused. (Page 108.)

5. PERJURY-SUBORNATION OF PERJURY-NATURE OF OFFENSES. Perjury and subornation of perjury are separate and distinct offenses, and one charged with subornation of perjury is not an accessory of the one committing the perjury. (Page 109.)

6. CRIMINAL LAW-EVIDENCE-ACTS OF

CONSPIRATORS—Admissibil

ITY. Where two or more persons conspire together to commit a crime, and either accomplish or abandon their design, no one

of them can by a subsequent act or declaration affect his coconspirator, and his confession subsequently made, though by the plea of guilty, is not admissible in evidence as such against the co-conspirator. (Page 109.)

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7. PERJURY-SUBORNATION OF PERJURY-EVIDENCE- ADMISSIBILITY. On a trial for subornation of perjury, the record of the plea of guilty of perjury by the person alleged to have been procured to commit the perjury is inadmissible. (Page 109.)

APPEAL from District Court, Seventh District. Hon. Ferdinand Erickson, Judge.

Defendant convicted of subornation of perjury appeals.

REVERSED AND REMANDED for a NEW TRIAL.

Jacob Johnson and G. A. Iverson for appellant.

M. A. Breeden, Attorney-General, and A. R. Barnes, Assistant Attorney-General, for respondent.

MCCARTY, J.

The appellant was convicted of the crime of subornation of perjury. The information, so far as material here, alleged that on and prior to the 4th day of June, 1907, a certain action was pending before the district court of Sanpete county, this State, wherein one Jacob Johnson was plaintiff and one Niels Peter Nielson was defendant, "and in which case the issues were as to whether certain notes executed by the said Niels Peter Nielson to the order of Alexander Justesen, the defendant herein, and to him, the said Alexander Justesen, delivered, were fraudulently retained and sold by the said Alexander Justesen, and whether the purchaser of the said notes from the said Alexander Justesen, viz., Jacob Johnson, was a purchaser in good faith, and without notice of anything that would vitiate the said notes in the hands of the said Alexander Justesen. That on or about the 7th day of June, 1907, at Manti, Sanpete county, State of Utah,

at