XIII. Weight, effect, and sufficiency. 1. Criminal cases. L.R.A. (N.S.) 1132, 66 Tex. Crim. Rep. 567, 148 S. W. 567. b. The presence of blood in the urine does not constitute sufficient evidence of a complete parting or solution of the covering or skin of the kidney to sustain a conviction of statutory wounding. State v. Gibson, 28 L.R.A. (N.S.) 965, 67 W. Va. 548, 68 S. E. 295. § 1636. Maintaining disorderly house. Sufficiency to show keeping of disorderly house, see DISORDERLY HOUSES, § 4 b. a. Evidence of general reputation alone will not support a conviction for maintaining a disorderly house. King v. Com. 48 L.R.A. (N.S.) 253, 154 Ky. 829, 159 S. W. 593. b. Evidence of the general reputation of a house as being a house of ill fame will not alone support a verdict against a defendant for keeping such a house but must be corroborated by some other fact or circumstance tending to prove the character of the house. Putman v. State, 46 L.R.A. (N.S.) 593, 9 Okla. Crim. Rep. 535, 132 Pac. 916. (Annotated) c. Evidence of certain men who went to a house, that they were told by defendant in a prosecution for maintaining a bawdyhouse, who met them there, that she kept girls there, and were invited by her to go to a room where the girls were, whereupon they did so and one of the witnesses had sexual intercourse in a room in the house with a girl whom he found there, in connection with evidence of the reputation of the house as being a house of ill fame, is sufficient to warrant a verdict finding the defendant guilty of keeping a bawdyhouse. Putman v. State, 46 L.R.A. (N.S.) 593, 9 Okla. Crim. Rep. 535, 132 Pac. 916. § 1637. Forgery. a. The fact that two signatures are exactly alike, or so nearly alike that they will bear a superimposition of one upon the other, is one of the strongest evidences of a forgery. Re Connolly, L.R.A.1916D, 635, 89 Wash. 168, 154 Pac. 155. § 1638. Gaming. roboration, see ante, § 1620 c, d, h. b. If there is any evidence whatever bearing upon the point of whether or not gambling implements found in a certain place were actually used for the purpose of gambling, the jury are to consider it and give it such weight as in their judgment it is naturally entitled to; and the prima facie proof declared by statute from the finding of such implements in the place, that the 19. Sufficiency of, to raise question for jury, a. The fact that an accused possessed the reputation of being a careful driver, and was so regarded by those who had ridden with him, will not tend to prove that he was not guilty of gross negligence, in the operation of his automobile. State v. Goetz, 30 L.R.A. (N.S.) 458, 83 Conn. 437, 76 Atl. 1000. b. In a prosecution for homicide, the possibility that death resulted from some other cause than that charged does not require an acquittal, if, upon all the evidence, the jury are satisfied of the guilt of the defendant beyond a reasonable doubt. State v. Buck, 42 L.R.A. (N.S.) 804, 88 Kan. 114, 127 Pac. 631. c. The evidence necessary to establish the corpus delicti in cases of homicide must show that the life of a human being has been taken, which question involves the subordinate inquiry as to the identity of the person charged to have been killed, and that the death was unlawfully caused by the party accused thereof, and by no other person. State v. Barnes, 7 L.R.A. (N.S.) 181, 47 Or. 592, 85 Pac. 998. d. The identity of a corpse found partly consumed in a fire may, for the purpose of proving the corpus delicti in a prosecution for murder, be established by circumstantial evidence, such as the size of the remains, and the finding, at and near the spot where the body was found, articles known to have belonged to a person who is alleged to have been killed; the weight and sufficiency of the evidence for that purpose being for the jury to determine. State v. Barnes, 7 L.R.A. (N.S.) 181, 47 Or. 592, 85 Pac. 998. (Annotated) e. That one whose skeleton was found in a burning pile of logs was wrongfully killed may be found from the facts that he was a healthy man, and that, from conditions in the vicinity of the fire, the body had been dragged to it, leaving bloody stains XIII. Weight, effect, and sufficiency. 1. Criminal cases. State v. Barnes, 7 L.R.A. Hronek v. People, 8 L.R.A. 837, 134 Ill. 139, 24 N. E. 861. (N.S.) 181, 47 Or. 592, 85 Pac. 998. along the way. 1. A finding that accused was engaged f. Possession shortly after his homicidal death of articles known to have belonged in an attempt to commit a burglary at to decedent, under circumstances which would justify accused's conviction of larceny, will warrant a conviction of murder, -especially when coupled with contradictory statements by accused as to the whereabouts of the missing person. State v. Barnes, 7 L.R.A. (N.S.) 181, 47 Or. 592, 85 Pac. 998. g. Evidence in a homicide trial that the accused had repeatedly threatened to kill the deceased, that a few days before the homicide he purchased a pistol and at the time of the homicide came upon the deceased unarmed upon the premises of the accused and rushed upon and shot him, then fled making no explanation of his attempted flight, is sufficient to authorize a conviction of murder in the first degree. Henry v. State, 52 L.R.A. (N.S.) 113, 10 Okla. Crim. Rep. 369, 136 Pac. 982. h. Testimony by persons who prepared for burial the body of a person who had been shot to death, that a wound in the front of the body was larger than those in the back, having a ragged appearance, is not sufficient to establish the fact that it was not made by a bullet fired from in front, so as to render unnecessary an examination of the body for the purpose of determining that fact, where they were not experts, and their examination was merely casual, and was contradicted by other witnesses and by the positive testimony of the one who fired the shot, that it was against the front of the body. Gray v. State, 22 L.R.A. (N.S.) 513, 55 Tex. Crim. Rep. 90, 114 S. W. 635. i. Something more than mere intention to kill must be shown in a prosecution for murder in the first degree, it being necessary that some circumstances admissible as evidence be shown, from which the fact of premeditation can legitimately be inferred. Miller v. State, L.R.A.1918C, 562, Fla. -, 77 So. 669. j. In determining the degree of malice implied in a threat made in the presence of a witness a considerable time before the killing, it is proper for the jury to take into consideration the facts that the defendant was more or less intoxicated at the time; that he and the deceased were in the habit of quarreling one day and becoming friends the next; and that before the killing they may have become reconciled. Bolzer v. People, 4 L.R.A. 579, 129 Ill. 112, 21 N. E. 818. k. The corpus delicti of the making, procuring, etc., of dynamite, with intent to use the same for the unlawful destruction of the lives of certain persons, is sufficiently proved by the fact that defendant had such explosives in his possession and kept them concealed, and on different occasions threatened to take the lives of such persons, and said he would throw bombs at them wherever he might meet them. the time he killed a police officer, so as to constitute the crime of murder in the first degree, is justified by evidence that he and his associates armed themselves and started towards the objective point of the burglary, stealing necessary implements on the way, and that, while inspecting the building which they intended to burglarize, with intent to break it open, which they would have done had their design not been fruswas encountered and trated, the officer killed. People v Sullivan, 63 L.R.A. 353, (Annotated) 173 N. Y. 122, 65 N. E. 989. m. Evidence that accused and others armed themselves and started out to commit a burglary, and that they encountered and killed a police officer near the scene of the intended crime, is sufficient to sustain a finding of deliberation and premeditation necessary to constitute the crime of murder in the first degree, although there is also evidence that the officer was the first to fire. People v. Sullivan, 63 L.R.A. 353, 173 (Annotated) N. Y. 122, 65 N. E. 989. n. To sustain a conviction upon a charge of murder in the first degree where the facts show the killing of a police officer during an expedition undertaken for the purpose of committing burglary, it is not necessary that all the jurors should agree that there was a deliberate and premeditated design to take life, or that accused was, at the time of the killing, engaged in an attempt to commit a felony; it is sufficient that each juror is convinced beyond a reasonable doubt that accused committed the crime which the statute designates as murder in the first degree, when a killing is perpetrated under either condition. People v. Sullivan, 63 L.R.A. 353, 173 N. Y. 122. 65 N. E. 989. (Annotated) a o. Where a baggageman and brakeman were seen together in the baggage car in private conversation before starting on trip, and had access to a car in which an express messenger was murdered, and an adjoining one in which a safe was robbed; and at the last station before the murder was committed the baggageman was seen passing from one car to the other; and no other parties upon whom suspicion can possibly rest were seen in or about said cars; and it is difficult to conceive how, under the circumstances proved, any other parties could have gained access to the cars, committed the murder and robbery, and escaped unnoticed; and the account given by the baggageman of the transaction abounds in many improbabilities, these facts, coupled with proof of their subsequent unexplained possession of large sums of money of the same denominations and description as that taken, and a marked alteration in their circumstances and ideas as to the use of money, and of their subsequent intimacy and frequent private interviews, and an admission of the brakeman as to concealing $2,000 in his house under the carpet, are XIII. Weight, effect, and sufficiency. 1. Criminal cases. sufficient to justify a verdict of guilty as to both. Watt v. People, 1 L.R.A. 403, 126 Ill. 9, 18 N. E. 340. p. All the elements constituting the corpus delicti in a murder case may be proved by circumstantial evidence. State v. Gillis, 5 L.R.A. (N.S.) 571, 73 S. C. 318, 53 S. E. 487. q. The premeditation essential to murder may be inferred from the circumstances of the case. Robinson v. State, L.R.A. 1915E, 1215, 69 Fla. 521, 68 So. 649. r. Evidence of an extrajudicial confession is circumstantial within the meaning of a statute providing that no person shall suffer the death penalty who shall have been convicted on circumstantial evidence alone. Damas v. People, L.R.A.1917D, 591, 62 Colo. 418, 163 Pac. 289. (Annotated s. One accused of homicide who relies upon intoxication as a ground for the reduction of the crime from murder in the first degree to the second degree need not prove intoxication beyond а reasonable doubt, nor that at the time he inflicted the fatal injuries he was so deeply intoxicated as to be incapable of forming in his mind a deliberate premeditated design to do the killing, but he is required to introduce only such evidence as will raise in the minds of the jurors a reasonable doubt as to such fact. State v. Cooley, 52 L.R.A. (N.S.) 230, 19 N. M. 91, 140 Pac. 1111. § 1640. Illegal transactions in quors. li Presumption and burden of proof as to, see Relevancy of evidence, see ante, § 1406. As to forfeiture of liquor tax certificate, Sufficiency of proof of sale of "beer," to 75. Keeping tippling house open on Sunday, see a. In a prosecution for selling intoxicating liquors contrary to law, the evidence of a sale is not insufficient merely because the witnesses to the transaction were unable to identify, out of a dozen men who were drinking, the particular individual or individuals who furnished the money observed to pass. State v. Durein, 15 L.R.A. (N.S.) 908, 70 Kan. 1, 78 Pac. 152. b. Where the evidence leaves the ques tion in doubt whether one who, in a local option county, fills out an order blank to secure liquor for another, is acting for the buyer or seller, he is entitled to the benefit of the doubt. Golightly v. State, 2 L.R.A. (N.S.) 383, 49 Tex. Crim. Rep. 44, 90 S. W. 26. c. In prosecutions for unlawfully convey ing intoxicating liquor, the state is required to establish by the proof, beyond a reasonable doubt, only that the liquor charged to have been conveyed, or some portion of it, was conveyed as alleged in the information. Blankenship v. State, L.R.A.1916A, 812, 10 Okla. Crim. Rep. 551, 139 Pac. 840. d. The jury may find that an express agent receiving an unmarked package from a distillery agent at a point where nothing was shipped except the products of the distillery, to be carried into local-option territory under the verbal statement that it was paint, was not deceived as to the contents of the package, where similar packages had been shipped to his knowledge under similar deceptive statements. Adams Exp. Co. v. Com, 18 L.R.A. (N.S.) 1182, 129 Ky. 420, 112 S. W. 577. e. In a case where defendant was enjoined from keeping intoxicating liquors in a certain place for sale and from selling them at that place, proof that large quantities of intoxicating liquors were subse quently purchased by him, some of which were kept at the place, and that he sold a pint of whisky to a purchaser, is sufficient to uphold a judgment finding him guilty of contempt. State v. Meyer, 40 L.R.A. (N.S.) 90, 86 Kan. 793, 122 Pac. 101. f. The jury cannot determine the age of the purchaser by inspection only in a prosecution for illegally selling liquor to a minor, where at no time during the introduction of the evidence was its attention called to the fact that the prosecuting witness was on inspection for that purpose. Quinn v. People, 40 L.R.A. (N.S.) 470, 51 Colo: 350, (Annotated) 117 Pac. 996. in the morning with a suit case in which is h. An illegal sale of intoxicating liquors off of chips representing money was taken may be found from evidence that a rake at the end of every deal of a poker game at which beer was furnished upon demand to those engaged in the play, without additional cost to them, although the only witness for the prosecution testified that he did not pay for any beer, and that nothing defendant's room unless by means of such was paid for the privilege of playing in rake off, since from such facts the jury or subterfuge adopted for the purpose of may infer that the game was a mere trick selling beer in violation of law. State v. Collins, 27 L.R.A. (N.S.) 1024, 67 W. Va. 530, 68 S. E. 268. i. That one making deliveries of intoxicating liquor is the agent of the nonresident vendor may be found from evidence that consignments were made to him, with directions as to where delivery should be made, and that he made deliveries with a team belonging to a local dealer who sup plied the consignor with orders. Merrill v. XIII. Weight, effect, and sufficiency. 1. Criminal cases. State, 44 L.R.A. (N.S.) 439, 175 Ind. 139, 93 N. E. 857. § 1641.intoxicating character of See also INTOXICATING LIQUORS, §§ 71-77. 131 S. W. 34. b. The mere fact that "beer" was purchased in a near beer saloon is not sufficient to overcome the presumption that it was intoxicating. State v. Billups, 48 L.R.A. (N.S.) 308, 63 Or. 277, 127 Pac. 686. (Annotated) c. A finding that Jamaica ginger is an intoxicating liquor within a statute making it punishable to sell or keep for sale any spirituous, malt, vinous, fermented "or other intoxicating liquor," is sustained by evidence that it is more than 90 per cent alcohol, the intoxicating character of which is in no way changed by the ginger, that it is capable of being used as an intoxicating liquor, and that it is so used in the locality to such an extent that blacklists are kept of persons known to be using it too freely. State v. Miller, L.R.A.1917F, 238, 92 Kan. 994, 142 Pac. 979. (Annotated) § 1642. Unlawful use of mails. Presumption and burden of proof as to, see ante, § 549 f. Larceny from the mails, see post, § 1653 b. a. U. S. Rev. Stat. § 5468, U. S. Comp. Stat. 1901, p. 3692, making the deposit of a letter in the postoffice evidence that it was intended to be conveyed by mail, does not make it conclusive evidence of that fact. United States v. Matthews, 1 L.R.A. 104, 35 Fed. 890. 114 C. C. A. 357. b. In a prosecution for perjury, the falsity of the defendant's evidence may be established by circumstantial evidence; but the facts constituting such circumstantial evidence must be directly and positively sworn to by at least one credible witness, supported by corroborating evidence, and, taken as a whole, must be of such a conclusive character as to exclude every other reasonable hypothesis, except that of the defendant's guilt. Metcalf v. State, 44 L.R.A. (N.S.) 513, 8 Okla. Crim. Rep. 605, 129 Pac. 675. (Annotated) c. In a prosecution for perjury for testifying falsely, in a prior prosecution for the illegal possession of intoxicating liquors for the purpose of violating a prohibitory liquor law, that the accused did not own the restaurant where the liquor was found, that he did not clerk there, nor was he connected with the restaurant as an employee or otherwise, the positive testimony of a witness that he watched the accused every night for a month, and that he was the person clerking and waiting on the customers, and was the only one clerking there, when corroborated by other witnesses who testified to acts of ownership by accused, together with evidence that the accused purchased supplies for, and paid the bills of, the restaurant, and had taken out a United States license authorizing him to conduct the business of a retail liquor dealer, is sufficient to sustain a conviction. Metcalf v. State, 44 L.R.A. (N.S.) 513, 8 Okla. Crim. Rep. 605, 129 Pac. 675. d. To establish subornation of perjury, the fact of the perjury may be shown by the testimony of a single uncorroborated witness. State v. Richardson, 44 L.R.A. (N.S.) 307, 248 Mo. 563, 154 S. W. 735. e. In order to convict for perjury it is not sufficient to prove merely that the accused at different times testified to two statements that cannot be reconciled unless there is some additional testimony as to the falsity of the matter in respect to which 1917C, 954, 137 Tenn. 129, 191 S. W. 975. perjury is charged. Paytes v. State, L.R.A. on two contradictory sworn statements, the f. In a prosecution for perjury based upprosecution must show which of the two statements is false by other evidence than the contradictory statement. People v. McClintic, L.R.A.1917C, 52, 193 Mich. 589, 160 N. W. 461. g. A conviction for false swearing cannot be sustained, unless the charge is supported by the testimony of two witnesses, or of one witness and strong corroborating circumstances. Smith v. Com. L.R.A.1918E, 927, 180 Ky. 240, 202 S. W. 635. h. The materiality of alleged false testimony is not established by evidence which shows merely that under some circumstances they may have been material while under other circumstances they could not have V. People, 32 L.R.A. (N.S.) 1069, 49 Colo. 538, 113 Pac. 640. been. McClelland i. The rule that under an indictment for perjury, the defendant cannot be convicted on the uncorroborated testimony of a single witness is not applicable to a case of subornation of perjury. State v. Richardson, 44 L.R.A. (N.S.) 307, 248 Mo. 563, 154 S. W. 735. j. Contradictory statements under oath will not alone convict one of perjury. People v. McClintic, L.R.A.1917C, 52, 193 Mich. 589, 160 N. W. 461. (Annotated) k. One cannot be convicted of perjury upon proof of contradictory testimony given before the grand jury and at the trial of the indictment returned by it. Paytes v. State, L.R.A.1917C, 954, 137 Tenn. 129, 191 S. W. 975. 1. The evidence to corroborate that of a S. W. 635. XIII. Weight, effect, and sufficiency. 1. Criminal cases. single witness that one accused of perjury § 1645. Sexual offenses. Unlawful performance of marriage cere- § 1646. - transportation for purpose of prostitution. n. Before the jury are authorized to convict the defendant on a charge of perjury, they must be satisfied from the testimony of one witness with corroborating circumstances, or from the testimony of more than one witness, that the prisoner swore and testified falsely, not believing his testimony to be true. United States v. Hall, 10 L.R.A. 324, 44 Fed. 864. o. The evidence to show perjury must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence. The oath of the accusing witness, therefore, will not avail to convict, unless it be strongly corroborated by other independent circumstances; but the jury will be justified in convicting upon the testimony of a single States v. Hall, 10 L.R.A. 324, 44 Fed. 864. p. One directly opposing witness is sufficient to convict of perjury, if corroborated by facts and circumstances proved on the trial, sufficient to establish the commission of perjury beyond a reasonable doubt. State v. Gibbs, 10 L.R.A. 749, 10 Mont. 213, credible witness so corroborated. United 25 Pac. 289. § 1644. Sale of oleomargarin. a. That oleomargarin is made and sold in imitation of yellow butter may be shown by resemblance produced solely by the ingredients of the manufactured compound, if they were selected to produce the color when others were available. State v. Meyer, 14 L.R.A. (N.S.) 1061, 134 Wis. 156, 114 N. W. 501. (Annotated) b. A prima facie case of selling and shipping oleomargarin in imitation of yellow butter is made out by evidence from which conscious imitation may be inferred, together with evidence tending to show that the accused knew that the compound shown to have been sold, etc., by him, was oleomargarin, and that it resembled yellow but ter. State v. Meyer, 14 L.R.A. (N.S.) 1061, 134 Wis. 156, 114 N. W. 501. a. Proof that one transporting a woman from one state to another had sexual intercourse with her will not support a conviction for transporting her for purposes of prostitution, if he did not aid or abet her in submitting her body promiscuously for hire. Johnson v. United States, L.R.A. 1915A, 862, 215 Fed. 679, 131 C. C. A. 613. b. That transportation was furnished a woman for purpose of sexual intercourse may be found from the fact that the one furnishing it had maintained sexual relations with the woman for years, had taken her on journeys for that purpose, and, when furnishing the transportation, instructed her to go to a certain place and await his arrival, which was followed by sexual intercourse between them. Johnson v. United States, L.R.A.1915A, 862, 215 Fed. 679, 131 C. C. A. 613. c. A purpose to transport a woman for purposes of prostitution cannot be found from the fact that several days after her arrival at her destination the one who furnished the transportation supplied her with money with which to open a brothel. Johnson v. United States, L.R.A.1915A, 862, 215 Fed. 679, 131 C. C. A. 613. in action for divorce, see ante, § 1503. § 1647.- adultery. Female as accomplice within rule as to corroboration, see ante, § 1620 j. Proof of venue, see ante, § 1624 e. by facts and circumstances such as lead the a. The crime of adultery may be proved guarded discretion of a reasonable and just direct testimony of the crime charged. man to a conclusion of guilt, without any Woody v. State, 49 L.R.A. (N.S.) 479, 10 Okla. Crim. Rep. 322, 136 Pac. 430. b. A conviction of living in open and notorious adultery is sustained by evidence that for a period of about a year and a half defendant lived with a woman whom he nized as such in the neighborhood, and that introduced as his wife and who was recog after it was learned that he had another wife living, and after he had been notified by the county attorney that the relationship between them was unlawful, they continued such relationship, and after leaving the community they returned and again assumed such unlawful relation. Spencer v. State, L.R.A.1918F, 592, 14 Okla. Crim. Rep. 178, 169 Pac. 270. (Annotated) § 1648. - bigamy. a. The state does not, in a prosecution for bigamy, sustain its burden of proving that the first wife was alive when the sec ond marriage was contracted by showing that she was alive four and a half years before the second marriage, since the presumption of continued life cannot take the place of proof of the fact. Dunlap v. State, 41 L.R.A. (N.S.) 1061, 126 Tenn. 415, 150 S. W. 86. |