Smith v. State , 6 Okla. Crim. 380 ( 1911 )

First. In prosecutions for keeping a house of ill fame, it is competent to introduce evidence of the general reputation of the house in the neighborhood in which it is situated, as to its being a place where lewd and lascivious persons of both sexes congregate for the purpose of unlawful cohabitation or sexual intercourse, and also to prove the general reputation of either the men or the women, for virtue, who congregate at such house. See Carroll v. State, 4 Okla. Cr. 242, 111 P. 1021.

"Evidence of the general bad character, reputation, and conduct of the inmates and frequenters of a house is competent to show the character of the house." (Ency. of Evi. vol. 4, p. 727.)

See, also, 14 Cyc. p. 505, and authorities there cited. The court therefore did not err in overruling the objections of counsel for appellant to the testimony offered in this case.

Second. The record discloses the fact that the following occurred during the closing argument of the county attorney. The county attorney addressed the jury as follows:

"Gentlemen of the jury, the defendant's place of business is the worst house of prostitution in town, and a man was murdered in that vicinity once, and I ask you to find the defendant guilty, or else another murder will be committed there, and cost the county thousands of dollars, and by finding the defendant guilty is the surest way to prevent it. (To the foregoing statement of the county attorney the defendant by his counsel excepts, and moves the court to direct the jury not to consider the statements of the county attorney, for the reason that the same are prejudicial to the rights of the defendant, and wholly unsupported by the evidence.) The Court: Yes, gentlemen of the jury, you are instructed to disregard such statements of the county attorney; the same being improper."

It was error for the county attorney to state to the jury that a murder had been committed at the place of business kept by appellant; but it appears that as soon as objection was made to this remark the court instructed the jury that it was improper, and should not be regarded by the jury. If this was a close case, the ruling of the court in excluding the remarks of the county attorney might not have been sufficient to prevent injury therefrom to appellant; but in the light of the testimony, if a new trial were granted, there is no reasonable ground to believe that upon a second trial an intelligent and honest jury could or would reasonably arrive at any other verdict than that of guilt. It would therefore be a waste of time and an unnecessary expense, and an interference with the enforcement of law and justice, to set aside this verdict, merely because the county attorney, in the heat of argument, made improper remarks, when such remarks are promptly excluded from the consideration of the jury by the trial judge. We believe that the verdict of the jury is right upon the evidence, and therefore the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.