This case was affirmed by this court on the original hearing. At the time it was impracticable, if not impossible, for appellant to submit the case on oral argument. In view of the serious questions arising, and because some of them were questions of first impression in this court, involving the validity of a statute, and desiring to obtain the utmost possible assistance in their proper disposition, the court invited counsel to submit the motion for rehearing on oral argument. The motion was argued orally, and we have, in the light of same, again gone over the questions involved. We see no occasion to change the disposition made of the case, but think it desirable to notice two of the matters raised in motion for rehearing and discussed by counsel.
1. It is urged that the court erred in admitting evidence of the general reputation of the house alleged to have been kept by appellant. The contention of appellant is, substantially that proof of general reputation in a charge similar to that made in this case is only admissible in cases where the repute of the house is an essential element of the crime charged, and that unless the repute of the house is the essence of the offense charged, it is not admissible. It has been the holding of this court, time out of mind, that general reputation is admissible in cases where parties are charged with keeping a disorderly house, though independent evidence must appear that the person charged was engaged in keeping such house as owner, lessee or tenant. This construction of the disorderly statute was uniform and well settled before the passage of the act considered. We think when the lawmakers came to add to the disorderly house statute the matters now contained in it, wherein they denounced as a disorderly house one kept for the sale of intoxicating liquors without license, that they must have intended that proof by reputation in respect to such house would be admissible on the same basis as had theretofore been the rule in this State.
2. It is claimed again, that this conviction cannot be sustained for the reason that it has and can have no reference to communities where no license can be issued at all. It seems to us that this reasoning is fallacious. To hold that one might be convicted for keeping and maintaining *Page 69 a house for the sale of liquors without obtaining license in counties and communities where such person could legally obtain license, and to deny local option precincts or counties the same protection, would be a most unreasonable holding. It would place a defendant who could not get license at all in a position not to be assailed, whereas it would denounce as a crime similar action of a person who could but decline to obtain license. It would make it an offense to keep a house for the sale of intoxicating liquors where he had the right to obtain license but refused to do so, but not make it an offense where he kept a house where no license could be granted at all. This position would result in making the law breaker in local option communities a privileged character, and in effect say to him, because you cannot obtain license, therefore, the law declines to punish you. That the law will punish a liquor dealer who could obtain license, but will not; but will not punish a person similarly engaged who could not obtain license, even if he wished; such a holding we cannot adopt.
The other matters raised are sufficiently discussed in the opinion. The motion for rehearing is overruled.
Overruled.