First. The evidence makes out a plain case against appellant of keeping and maintaining what is commonly called a "whisky joint." The room was fitted up as such, the necessary fixtures and utensils were there, and appellant was possessed of a United States government license to retail intoxicating liquors. We do not see how a stronger or plainer case could be made. The *Page 515 various objections offered to the admission of the testimony are purely captious and are without merit. The fact that there was no proof that a sale of prohibited liquors had been made in the place kept by appellant is immaterial. Such evidence was not only unnecessary, but would have been admissible only to show the purpose for which the place was kept and maintained. He was not prosecuted for selling intoxicating liquors. His offense consists in keeping and maintaining a place at which such liquors were exposed for sale. The selling of such liquors would be an entirely different and separate offense.
Second. The right of the court to require the confinement of appellant in the county jail in the event he failed to pay the fine is questioned. This has already been settled by the previous decisions of this court in an elaborate opinion by Judge Doyle, adversely to the contention of appellant. See Ex parte Bowes,8 Okla. Cr. 201, 127 P. 20.
Without disrespect to counsel for appellant, to our minds it seems the utmost and wildest folly to contend that the Legislature intended that imprisonment may be had for fine, where fine alone is assessed, and not where imprisonment is also assessed. Imprisonment for nonpayment of the fine is the legal means of enforcing such judgment just as imprisonment will follow the nonpayment of a fine for contempt of court. Brock v. State,22 Ga. 98; Shiver v. State, 23 Ga. 230; In re Boling, 31 Ill. 88;Brownbridge v. People, 38 Mich. 751; State v. Paterson et al.,38 Mich. 143, 36 N.W. 443; Berkenfield v. People, 191 Ill. 272, 61 N.E. 96. Our statute is but a re-enactment of the common law as to imprisonment for nonpayment of fine, and the practice at common law was to imprison for fine even if imprisonment as a part of the punishment also was imposed in the judgment.Beecher's case, 8 Coke, 58; Fischer v. Hayes (C.C.) 6 F. 63;U.S. v. Robbins, Fed. Cas. No. 16,171.
As to the guilt of appellant there can be no question. The evidence is conclusive that he willfully and deliberately violated the law without the least shadow of legal justification or excuse. *Page 516 From the testimony it is plain that appellant is a confirmed and adroit criminal. Such characters must be taught that they cannot violate the law with impunity. The punishment of appellant has already been too long delayed.
The judgment of the lower court is in all things affirmed. The clerk of this court will issue the mandate at once, with directions to the lower court to proceed to enforce its judgment without further delay.
ARMSTRONG, P.J., and DOYLE, J., concur.