This is an appeal from the district court of Okmulgee county, wherein the defendant was convicted of the crime of opening and conducting a game of craps, and his punishment fixed as above stated. *Page 600
Two alleged errors are relied upon for a reversal of the judgment: (1) That the court permitted incompetent and irrelevant evidence to be introduced against the defendant, over objection and exception properly saved; (2) that there is an entire lack of competent evidence to sustain the conviction.
An examination of the record convinces the court that both of these grounds are well taken, and that the judgment should be reversed. The Attorney General has filed a brief in which he confesses that the admission of evidence of the general reputation of defendant's house or place of business in a prosecution for opening a gambling game is error, citing the following authorities: Underhill on Criminal Evidence, sec. 475; Wharton on Criminal Evidence, sec. 260.
In this connection, the Attorney General says:
"Our courts permit the proof of reputation of places by general reputation of such, under charges for unlawfully keeping and having in possession intoxicating liquors. By analogy the same medium of proof and character of testimony would apply in a prosecution for maintaining a gambling house under section 2511n, Bunn's Annotated Supplement to the Revised Laws of Oklahoma, 1910. But until the higher courts or the Legislature extend this rule as to reputation evidence, we are not at liberty to adopt it as the law when there is no authority either in the adjudicated cases or in the various treatises on the law of evidence justifying an extension of this rule. This is especially true by reason of this court's holding in the case of Mitchell v. State,9 Okla. Cr. 172, 130 P. 1175. In this case, the court expressly decided that one's reputation is inadmissible to prove one to be a common gambler, which decision and ruling renders reputation evidence at least equally as inadmissible in a case of conducting a specific game. * * * *Page 601
"If the general reputation of defendant Jackson could not be proved in the first instance by the state wherein he was charged with the crime of `opening and conducting a crap game,' we concede that proof of the general reputation of his house and place of business was at least one degree less relevant and was clearly inadmissible."
While the evidence in this case shows that a white man and a negro were engaged in shooting craps in defendant's place of business, there is no evidence from any witness to the effect that the defendant opened or conducted said game, although defendant was in another part of the building at the time the game was in progress.
In the absence of any evidence to the effect that the defendant either opened or conducted the game of craps, for which he was tried and convicted and sentenced to a term of five years in the penitentiary, and also in view of the fact that incompetent and irrelevant evidence, which was prejudicial to his substantial rights, was permitted to be introduced against him over his objection and exception, the judgment of the trial court is reversed, and the cause remanded, with instructions that the same be dismissed unless the state is now in possession of further evidence which tends to connect the defendant with the commission of the crime.
DOYLE, P.J., and ARMSTRONG, J., concur. *Page 602