Ed. A. Wallace, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 41 Fla. 547

Carter, J.: On January 24, 1898, the County Solicitor for Escambia county filed in the Criminal Court of Record of that county an information charging that Pat McHugh, as mayor of the city of Pensacola, and Ed. A.

Wallace, as marshal of said city, on the 8th day of August, 1897, did verbally threaten to accuse Marie Anderson of an offence against the code of ordinances of the, city of Pensacola, and did then and there, with the intent to extort money from the said Marie Anderson, maliciously verbally threaten ta accuse said Marie Anderson of the of-fence of keeping a bawdy-house against the ordinances aforesaid, and to have her arrested for same if she did not pay to them, or either of them, the sum of fifty dollars, and that in the manner and form as aforesaid, by the means aforesaid, he the said Pat McHugh, and he the said Ed.

A. Wallace, did then and there maliciously threaten to accuse the said Marie Anderson of said of-fence with intent thereby to extort money from her, the said Marie Anderson, against the form, &c.- Wallace moved to quash the information upon the ground that it was vague, indefinite, uncertain and charged no of-fence. This motion was overruled, and thereupon defendant was arraigned and pleaded specially, first, a former conviction and sentence upon an information in the same court charging by the first count that Pat McHugh and Ed.

A Wallace on August 7, 1897, did unlawfully and maliciously agree, conspire, confederate and combine to extort, obtain and procure of and from Melissa Zurich payment by her of a large sum of money, and in order to extort, obtain and procure the payment by her of the sum of one hundred dollars, did corruptly afid unlawfully conspire to verbally threaten to have the said Melissa Zurich arrested for being the keeper of a bawdy-house; and by the second count, that on August 7, 1897, Pat McHugh, mayor of the city of Pensacola, and Ed. A.

Wallace, marshal of said city, on said day, unlawfully intending- to extort, obtain and procure money from one Melissa Zurich, did unlawfully and maliciously conspire, confederate, combine and agree together to presume to act officially in their respective offices, and under color of their respective offices as aforesaid, to threaten and oppress the said Melissa Zurich in order by said oppression of said Melissa Zurich-to obtain, procure and extort of and from her the payment to them of a certain sum of money, to-wit: one hundred dollars; the plea alleging that the conspiracy against Melissa Zurich in said information named was only part and parcel of one general conspiracy alleged and proved upon the trial to have been entered into- by this defendant and his codefendant Pat McHugh against a large number of persons to- maliciously accuse them and have them arrested for being keepers of bawdy-houses, or keepers of gambling houses, in order to extort money from them; the said Melissa Zurich and one Mary Richardson and said Marie Anderson being included in those against whom the conspiracy was made, and that the matters alleged in the informations were parts and parcels of one transaction and one offence; and second, a former acquittal upon an information in' the same court charging that Pat McHugh, as mayor of the city of Pensacola, and Ed.

A.

Wallace, as marshal of said city, on August 8, 1897, did verbally threaten to accuse Mary Richardson of an offence against the code of ordinances of the city of Pensacola, and did then and there as aforesaid, with the intent to extort money from said Mary Richardson, maliciously verbally threaten to accuse said Mary Richardson of the offence of keeping a bawdy-house against the ordinances aforesaid, and to have her arrested for same if she did not pay to them or either of them the sum of twenty-five dollars, and in the manner and form aforesaid, by the means aforesaid, he the said Pat McHugh and he the said Ed.

A. Wallace did then and there maliciously threaten to accuse the said Mary Richardson of said offence with intent thereby to extort money from her the said Mary Richardson, and alleged that the malicious verbal threats charged in said information, and in the one to which this plea was pleaded, and the conspiracy charged in the information mentioned in the first plea, were all parts and parcels of one transaction and constituted but one and the same offence.

The court sustained the State’s demurrer to these pleas, and thereupon defendant pleaded not .guilty, upon which a trial was had resulting in a verdict of guilty. Defendant’s motion for a new trial being overruled, the court pronounced sentence that defendant “be confined in the State penitentiary at hard labor for a period of five years, sentence to begin at the expiration of first sentence. It is therefore considered and adjudged by the court that the said Ed. A.

Wallace at the expiration of his first 'sentence be taken by the sheriff of this county and by him delivered or caused to be delivered to the keeper of said penitentiary, to be by him confined in the aforesaid penitentiary for the aforesaid period of five years.” From the sentence imposed this writ of error is taken. I. The first error assigned relates to the ruling refusing- the motion to- quash. The contention is that the information alleges legal conclusions only, the words used in making the threat being omitted, and that the information fails to charge that the threats were made maliciously.

We shall not examine the information further than to ascertain whether it is amenable to the specific objections urged; and, if so, whether it ought to be quashed therefor.

The statutes (§2420, Rev. .Stats.,) provides that “whoever, either verbally or by a written or printed communication maliciously threatens tO' accuse another of any crime or offence * * * with intent thereby to extort money * * * shall be punished by imprisonment in the State prison not exceeding ten years.” While there are some superfluous allegations in the information, it does charge that defendants did maliciously verbally threaten to accuse Marie Anderson of the offence of keeping a bawdy-house against the ordinances of the city of Pensacola, with intent to extort money from her, and the defendant’s conduct is distinctly alleged to have been malicious.

It was unnecessary to give the language of the threats used. The substance only of the threats need be set forth in an information under this statute; the) particular language used .is a matter of proof. The allegations that the defendants maliciously verbally threatened to accuse Marie Anderson of the specific offence named, state the substance of the threats, and are sufficient without quoting the language of the parties. Commonwealth v. Moulton, 108 Mass. 307; State v. Lewis, 96 Iowa, 286, 65 N. W. Rep. 295; 2 Bishop’s Crim. Proc. §1026; Bishop’s Directions & Forms, §979. II.

The State’s demurrer to defendant’s special pleas was properly sustained, because neither the former conviction nor the former acquittal was for the same offence as that charged in the information in this case, and to sustain pleas of this character the offences must be the same. Newberry v. State, 26 Fla. 334, 8 South. Rep. 445; Tuberson v. State, 26 Fla. 472, 7 South. Rep. 858; Boswell v. State, 20 Fla. 869.

The first count of the information mentioned in the first plea charged McHugh and Wallace with a criminal conspiracy to extort money from Melissa Zurich by verbally threatening to charge her with being the keeper of a bawdy-house, and the second count charged the same parties as officials of the city of Pensacola, with criminal- conspiracy in their official capacity and under color of their offices to- threaten and oppress Melissa Zurich in order to extort money from her.

The information mentioned in the second plea charged the same parties with maliciously, verbally threatening to accuse Mary Richardson of the offence óf keeping a bawdy-house, with intent to extort money from her. It is obvious upon the face of these informations the charge in each case was of an offence other than and different from the one for which defendant was being- tried, vis: maliciously verbally threatening to accuse Marie Anderson of the offence of keeping a bawdy-house with intent to extort money from her.

The pleas alleged, however, that the conspiracy against Melissa Zurich was only part and parcel of one general conspiracy on the part of McHugh and Wallace against a large number of persons to maliciously accuse them of being keepers of bawdy-houses and gambling houses, in order to extort money, Melissa Zurich, Mary Richardson and Marie Anderson being included in those against whom the conspiracy was' made, and that said conspiracy, and the threats against Mary Richardson and Marie Anderson were parts and parcels of one transaction and constituted but one and the same offence.

If the information mentioned in the second plea, or the one upon which defendant was being tried, had been for conspiracy to d.O' the acts charged to have been done in each, the defendant’s contention that the acts charged were but parts of the same transaction or conspiracy-charged in the information mentioned in the first plea would be more plausible; but such is not the case. In order to convict of the conspiracy, the consummation of its object need not be proved, although evidence thereof would not be immaterial on the question of intent.

To convict either defendant upon the information mentioned in the second plea, or upon the one under which defendant'was tried it would not be necessary, though it might be proper, to prove a conspiracy, but .it would be necessary to prove that defendants maliciously verbally threatened, &c. The conspiracy was a mere misdemeanor, but the accomplishment of its object would have constituted a felony.

It may be that when the object of the conspiracy was accomplished, the misdemeanor would be merged in the felony, and if this be true,- the defendant ought to- have been acquitted of the conspiracy, but having suffered a conviction upon the charge of conspiracy, he can not be heard to plead it in bar of the felony committed in pursuance of the conspiracy.

The most favorable view that can be taken of the allegations of the pleas is that defendants entered into one general conspiracy to accuse different persons of of-fences of keeping bawdy-houses or gambling houses for the purpose of extorting money, and that in pursuance of this conspiracy various persons were so accused, and money extorted from them. While the conspiracy may have been one single, indivisible transaction, yet the accomplishment of its object involved distinct acts against different individuals, although the acts against each were of precisely the same nature.

If they, in pursuance of the conspiracy, threatened to accuse Melissa Zurich with being the keeper of a bawdy-house, with intent to extort, &c., they committed one felony; and if they, in pursuance of the conspiracy, threatened to accuse Mary Richardson with being the keeper, &c., they committed another, distinct felony by other though similar means; and if they threatened to accuse Marie Anderson with being the keeper, &c., they committed another distinct felony by other, though similar means.

Though the means were similar, they were not identical, .for they related to and affected different persons, with a different object, in the one case the threats were to Melissa Zurich to induce her to pay money, in another to Mary Richardson to induce her to pay money and in the other to Marie Anderson to' induce her to pay money.

While the conspiracy may have been single, and therefore subject to one indictment only, yet the felonies accomplished by means of the conspiracy were separate and distinct, depending upon different acts, provable by different evidence, and accomplished by distinct though similar means. The evidence 'essentially necessary to sustain one indictment would not sustain either of the others; nor could defendant be convicted upon one information upon the evidence necessary to sustain either of the others.

While evidence of threats to accuse Melissa Zurich and Mary Richardson of offences of keeping bawdy-houses, as we show further on, was admissible upon the trial for threats to accuse Marie Anderson of keeping a bawdy-house with intent, &c., such evidence alone would not sustain a conviction under the latter charge, because it would be necessary to* prove that Marie Anderson was threatened;

an act and a crime separate and distinct from the one accomplished by threats to Melissa Zurich or Mary Richardson. 1 Bishop’s Crim. Law, §1065; Ibid. §§1052, 1061; State v Sias, 17 N. H. 558; State v. Horneman, 16 Kan. 452. III.

Marie Anderson, a witness for the State, testified that she resided in Pensacola in August, 1897; that on August 7, Regan, a policeman of the city, notified her to be at the police station on the next day (Sunday) between 2 and 3 o’clock; that she complied with the notice and found McHugh, mayor, and Wallace, marshal, in their private room; that the door was closed and Regan was standing at it; that she went in, found no one there but McHugh and Wallace and at the interview then had between them the State claimed that the alleged threats were made.

Rosa Johnson, another State witness, testified that she also was notified by Regan on August 7, to appear at the police station next day; that she did so, found McHugh and Wallace in the mayor’s office, and had an interview with them in which, according to the State’s contention, she was threatened with a criminal accusation in order to extort money.

The defendant objected to the testimony of these witnesses as to their being notified by Regan to appear at the police station, upon the ground that same was irrelevant, immaterial and hearsay, and it is insisted that the decision overruling these objections was erroneous. The testimony was obviously relevant if Regan was acting under authority from defendant and McHugh.

In his testimony defendant admitted that Regan had authority from him and McHugh to notify parties to appear at the police station, and that he and McHugh were at the latter’s private office on August 8, 1897, and received “these people,” referring to the State’s witnesses, one at a time.

It is true he did not remember seeing Marie Anderson there, and he claimed that all the parties present that day were being tried by the mayor for the offences of keeping or visiting bawdy-houses or gambling houses, but his admission that Regan had authority from him and McHugh to notify persons to appear before them rendered the evidence objected to relevant and competent, and the error, if any, in admitting.it originally was cured by defendant’s own admissions in the case. • IV.

Marie Anderson testified that upon her appearance at the police station on Sunday, August 8th, she was admitted into the private office of the mayor, where she found McHugh and'Wallace alone; that McHugh asked’ her name and Wallace told him it was Marie Anderson, and that she kept a large house with eight or ten girls; that she replied that she did not keep a large house, that there were only two' girls at her house; that Wallace said she kept eight or ten girls; that he wanted fifty dollars, and that she must pay it next morning or go to jail; that she had not been served with a warrant, was not asked to plead guilty tO' any offence, no witnesses were examined against her, nor was she asked if she desired any witnesses to swear for her; that she paid Wallace twenty-five dollars next morning between nine and ten o’clock; that she subsequently paid the balance partly to- McHugh and partly to AVallace and that part of it was paid after Wallace came to her house and asked if she had any money, and told her if she did not pay “that fine” she “would have the yellow fever.” She also stated that on the Sunday in question shg. saw all of the State’s witnesses at the police station.

Thé State thereupon introduced various other witnesses who testified that they were on August 7, 1897, notified by Regan to appear at the police station on the next day; that they did so and found McHugh and Wallace in a private office; that they were separately admitted into this room and demands were made upon them by McHugh and Wallace for sums of money; that they either at that time or subsequently complied with such demands by paying money to Wallace and McHugh; that no court was being held on that day, no witnesses examined, no arrests had been made and no charges in regular form for offences against the city ordinances had been preferred, and that the. clerk of the police court was not present at the time.

The testimony of some of these witnesses, Rosa Johnson, Jim Goldstucker and Tom Ridley tended to' show that the money demands were made upon them either under insinuations of prosecution, or under the guise of fines imposed, for keeping bawdy-houses or visiting gambling houses; others, Nellie Payne, Cora Pearl, Pauline Spencer, Melissa Zurich, Mabel Spencer, Charles Evans and Major Cowart, that demands were made upon them for money under various pretexts, such as “you have had fun enough to pay fifty dollars,” or “we want fifty dollars for protection; this is a better way than to bother you,” or “we suppose you know what you are here for, is fifty dollars too much ?” or by simply demanding money without explanation, or pretending to impose it by way of a fine without a trial.

The State also introduced evidence tending to show that Mollie McCoy was notified by Regan to appear at the police station on August 8, but she did not go; .that when Cora Pearl was before Wallace and McHugh on that day they asked her where Mollie McCoy was, and being told she was at home they told Cora Pearl to tell her they would be around for seventy-five dollars; that on a subsequent evening after dark McHugh and Wallace called at Mollie McCoy’s house and collected the seventy-five dollars, although she had not been arrested for an}'- offence or tried by the mayor upon any charge, and she told them she was not paying the money as a fine.

The testimony of each witness was objected to as being immaterial and irrelevant, and the argument in this court is that the evidence of these witnesses proved distinct offences, and that it was not proper to show that Wallace and McHugh had threatened other people in a manner similar to that charged in the information upon which he was being tried.

The rule of law applicable to this question may be stated as follows: Evidence of another and distinct crime, committed by a defendant, in no way connected by circumstances with the one for which he is being tried, is inadmissible; but proof of any fact with its circumstances, even though amounting to a distinct crime, if it has some relevant bearing upon the issue being tried, is admissible. Roberson v. State, 40 Fla. 509, 24 South. Rep. 474.

In that case we held that evidence tending to prove that defendant intentionally set fire to and burned a house which he was charged with breaking and entering in order to conceal or destroy the physical evidence of the breaking was competent.

All the authorities concur in the view that evidence of defendant’s acts prior or subsequent to the alleged offence which logically tend to prove the criminal intent, or guilty knowledge, where they are material, is admissible; and likewise where the crime in question is one of a system of criminal acts occurring so near together in point of time and so nearly similar in means as to. lead to the logical inference that they are all mutually dependent and committed in pursuance of the same deliberate criminal purpose and by means planned beforehand, evidence of such other acts is admissible, even though those acts amount to another criminal offence.

But such evidence is not admissible for the purpose of proving' that defendant committed the crime charged against him, but to show his purpose, plan, intent or knowledge, or to show that the acts charged against him xyere not the result of accident, mistake or inadvertence, or to rebut a defence which would otherwise be open to the accused. For leading cases upon this subject, see State v. Lapage, 57 N. H. 245, S. C. 24 Am. Rep. 69, referred to. approvingly in Mann v. State, 22 Fla. 600; Trogdon v. Commonwealth, 31 Gratt. 862; State v. Myers, 82 Mo. 558, S. C. 52 Am. Rep. 389. See, also, Langford v.

State, 33 Fla. 233, 14 South. Rep. 815; Queen v. Francis, L. R. 2 Cr. Cas. Res. 128; Makin v. Attorney-General, L. R. App. Cas. (1894), 57; State v. Fallon, 2 N. Dak. 510, 52 N. W. Rep. 318; Rafferty v. State, 91 Tenn. 655, 16 S. W. Rep. 728; State v. Turley, 142 Mo. 403, 44 S. W. Rep. 267; State v. Wilson, 143 Mo; 334, 44 S. W. Rep. 722; Leeper v. State, 29 Tex. App. 63, 14 S. W. Rep. 398; Crum v. State, 148 Ind. 401, 47 N. E. Rep. 833; Housh v. People, 24 Col. 262, 50 Pac. Rep. 1036; People v. Williams, 58 Hun, 278, 12 N. Y. S. 249; Card v. State, 109 Ind. 415, 9 N. E. Rep. 591.

We are of the opinion that the evidence objected to came within the rule above stated and that it was properly admitted. State v. Lewis, 96 Iowa, 286, 65 N. W. Rep. 295; State v. Balch, 136 Mo. 103, 37 S. W. Rep. 808. V. Rosa Johnson, one of the State’s witnesses, had testified on direct and cross-examination that she was on August 8, 1897, residing at 40 E.

Saragossa street; that when she appeared before McHugh and Wallace on that day Wallace asked her if she rented a house, and when she said yes, he said he wanted twenty-five dollars; that McHugh and Wallace asked her if she rented a house and fined her for renting a house, although she knew it was not against the law to rent a house.

The 'defendant then asked her on cross-examination: “Was that house a house; of prostitution ?” The witness stated “I decline to answer.” The defendant then asked: “Will you state your reason why you decline to answer?” The witness replied: “I refuse to answer that also.” When the questions were asked, the witness was instructed that she need not answer them if she thought the answers might incriminate her or cause her to be prosecuted for any criminal offence.

The defendant did not press the questions further other than to insist that the witness be required to state her reason for declining to answer, but the court held that she need assign no reason. The witness further stated on, cross-examination : “When I was arrested a friend paid my fine.” Defendant then asked her: “What is the name of your friend?’ The witness replied “I decline to answer.” Defendant insisted that the witness be required to answer the question, but the court ruled that she need not answer if she thought it would tend to criminate her, and defendant excepted to the ruling. 1.

The ruling upon the questions first proposed was correct. An affirmative answer to the question: “was that house a house of prostitution?” taken in connection with previous admissions that she had rented it and resided there, would have furnished pertinent evidence against her upon a prosecution for keeping a house of ill fame. There was sufficient before the court for the latter to see that the answer would tend to criminate the witness, and to permit her to avail herself of the privilege without requiring her to say in so many words that it would tend to criminate her, or to explain how it would tend to do so'.

The rule stated in Ex parte Ed. Senior, Jr., 37 Fla. 1, 19 South.

Rep. 652, is that while the witness must judge of the effect of his answer and should not be required to explain how it will criminate him, yet the court must determine under all the circumstances of the case whether such will be its tendency from the question asked, and where from the nature of the investigation and the character of the testimony sought, it reasonably appears that the answer may criminate, or tend to criminate, the witness has the right to claim his privilege and is not bound to answer, and the court was governed by that rule in this case. 2.

We fail to see what relevancy or bearing an answer to the question, “what is the name of your friend,” could have had upon the issues being tried. It was wholly immaterial what friend of the witness had paid a fine for her when she was under arrest.

In fact there was no evidence that this witness was ever arrested except as implied in her statement on cross-examination, “when I was arrested a friend paid my fine.” No other allusion to any arrest occurs in her testimony, and the fine here mentioned by her evidently refers to some fine other than the one which defendant claims was imposed upon her on August 8, 1897, for she states that she paid that sum herself at various times without ever having been under arrest.

Even if the court declined to require the witness to' answer the question for an erroneous reason, the ruling should not be disturbed where it clearly appears that the answer would have been wholly irrelevant and immaterial. VI. On cross-examination defendant propounded to J. E. Lawless, a State’s witness, the following question : “Are there any criminal charges pending against you?” which the court excluded upon objections by the State, but the grounds of objection are not stated. There is some conflict of authority as to the propriety of questions of this nature on cross-examination.

All seem to hold that if a question of this character is answered by the witness, his answer can not be contradicted by other evidence. Some hold that an accusation merely, furnishes no- proof of guilt, and can not, therefore, logically affect the credibility of the witness, wherefore questions respecting mere accusations are properly excluded. People v. Crapo, 76 N. Y, 288, 32 Am. Rep. 302; Ryan v. People, 79 N. Y. 593; Van Bokkelen v. Berdell, 130 N. Y. 141, 29 N. E. Rep. 254; People v. Hamblin, 68 Cal. 101, 8 Pac. Rep. 687; State v. Millmeier, 102 Iowa, 692, 72 N. W. Rep. 275; Bates v.

State, 60 Ark. 450, 30 S. W. Rep. 890; Roop v. State, 58 N. J. L. 479, 34 Atl. Rep. 749; State v. Kent, 5 N. Dak. 516, text 557, 67 N. W. Rep. 1052. In Missouri the exclusion of such questions is reversible error (State v. Taylor, 118 Mo. 153, 24 S. W. Rep. 449), although the court had previously held otherwise (State v. Howard, 102 Mo. 142, 14 S. W. Rep. 937); and in Texas the rule seems to be that on cross-examination a witness may be interrogated as to indictments or accusations against him for crimes involving moral turpitude, but no others (Brittain v. State, 36 Tex. Cr. Rep. 406, 37 S. W. Rep. 758; Goode v.

State, 32 Tex. Cr. Rep. 505, 24 S. W. Rep. 102), bu.t the general rule upon this subject, sustained by .the weight of authority, is that cross-examination of a witness as to indictments or charges before conviction against him, of criminal offences, is a matter of discretion in the trial court, not subject to review on writ of error or appeal, unless the discretion is abused. Wroe v. State, 20 Ohio St. 460; Hanoff v. State, 37 Ohio St. 178, S. C. 41 Am. Rep. 496; State v. Murphy, 45 La. Ann. 958, 13 South. Rep. 229; Driscoll v. People, 47 Mich. 413, 11 N. W. Rep. 221; State v. Pfefferle, 36 Kan. 90, 12 Pac.

Rep. 406; State v. Bacon, 13 Oregon, 143, 9 Pac. Rep. 393; Hill v. State, 42 Neb. 503, 60 N. W. Rep. 916; People v. Hite, 8 Utah, 461, 33 Pac. Rep. 254; Penny v. Rochester Ry. Co., 7 Hun, App. Div. 595, affirmed 154 N. Y. 770, 49 N. E. Rep. 1101; 1 Thompson on Trials, §464. There is nothing in this case to show an abuse of discretion by the ruling complained of, nor does the plaintiff in error contend that the court below abused its discretion in the matter.

For the rules which should govern the exercise of the court’s discretion in allowing or disallowing questions of this nature upon collateral matters to affect the credibility of a witness see paragraph X of this opinion. VII. Felix Glackmeyer, a State witness, testified that in August, 1897, he was city clerk of the city of Pensacola, and held such office at the time of the trial. He produced a document and testified that it was the police court docket.

A portion of this docket including cases from August 7th, to 14th, 1897, was then offered in evidence, and it fails to show that any proceedings were had in the police court on August 8, 1897, or entries made thereon as of that date. The defendant thereupon propounded to the witness the following question: “Do you know whether or not fictitious names are put on that docket, whether parties would just pay their fine and not go to court?

You know whether or not fictitious names are frequently entered on the docket where parties did not appear in the court, but paid the fine for the offence charged?” These questions were excluded on objections by the State, and we think correctly so, because they were not properly in cross, and were not framed to impeach that part of the docket offered in evidence by showing a practice during the period covered thereby' of putting fictitious names thereon. VIII. W. H. H. McDavid testified on behalf of the State “I know Rosa Johnson. She was arrested a good many times. I do not remember any particular charge.

She paid me ten dollars in November which I gave to Wallace.” Defendant objected to this evidence as irrelevant and immaterial, but the court overruled the objections. Rosa Johnson was a State witness, and it is not easy to see what object the State’s counsel had in offering evidence tending to discredit her by showing that she had been arrested a good many times. The first part of McDavid’s testimony was clearly beneficial to the defendant, and he has assigned no error on it in this court.

Pie does insist, however, that the court erred in overruling his objections to the statement that “she paid me ten dollars in November, which I gave Wallace.” There is no doubt that this statement of the witness was irrelevant and immaterial. The State did not attempt to show that this ten dollars was paid in pursuance of the demand made upon her by Wallace and McHugh on August 8th, or in pursuance of a demand made upon her by either of them at any other time. While the court should have excluded it, we are clearly of the opinion that it did not and could not injure the defendant.

It was an isolated immaterial fact, harmless in itself and one from which no prejudicial inferences could have been drawn by the jury. Nc> effort was made to show that Wallace received this money in his official capacity, or that he failed to properly account for it, or that it was even paid to him as a fine or money due the city. The statement did not tend to corroborate anything in the testimony of Rosa Johnson or any other witness.

Standing alone, or in combination with other evidence it was harmless; for alone, it suggested no improper conduct on defendant’s part, and in connection with other evidence, it had no tendency to add credit to such other evidence or to extend its criminating force. While the court erred in admitting it, the error was harmless. IX.

The defendant was sworn as a witness and testified that in August, 1897, he was marshal and McHugh mayor of Pensacola; that he had heard the testimony of Melissa Zurich, Nellie Payne, Mollie McCoy, Pauline Spencer and Mabel Spencer; that of his own knowledge they were keepers of bawdy-houses; that he knew Major Cowart, Charles Evans and Jim Goldstucker who he said were gamblers; that these parties were summoned to appear before the mayor on Sunday; that this was done under the direction of the mayor as he thought it better than to' make wholesale arrests; that he and McHugh chose this method because the latter said it was a better way to suppress crime and had been debated in council; that they selected an officer tO' summon the parties to appear; that nothing was said to these people about wanting money; that those who pleaded guilty to visiting bawdy-houses were required to pay fines; that there were no threats made about prosecution; that he did not know the parties were to appear at the police station on Sunday until the mayor told him to be there at a certain hour; that Melissa Zurich requested her name to* be put down as Melissa Zack.

The State had introduced evidence tending to show that there was another docket from which the mayor’s docket was copied as cases were disposed of by the police court, known as the turnkey’s docket; that sometime after the 8th of August, 1897, Rev. Mr.

McNeil preached a sermon on reform of government, maleing reference to the holding of a “Sunday court;” that Wallace knew the subject-matter of this sermon as it , was published in the newspapers and discussed by some of the city officials in his presence; that the turnkey’s docket disappeared shortly after this sermon was preached and that it disappeared with the connivance or by the direct action of Wallace and McHugh.

Upon this subject Wallace testified that he had heard the testimony of Cummings about a docket being missing; that he and McHugh were present that night and he knew the next morning' that the docket had been stolen, but that he did not steal it, nor did McHugh ' to his knowledge; that he was not present when McNeil preached the sermon — did not hear it, but did read it, and that there was nothing in it to- hurt him.

(1) On cross-examination he stated that he and McHugh were in the mayor’s private office on Sunday, August 8, and received these people in the private room one at a time; that he remembered Melissa Zurich, she was there. The State then asked the witness “how much she was asked for?” to which defendant objected, because it was not in cross, was immaterial and irrelevant, and assumed facts not admitted by defendant to have been proven. These objections were properly overruled.

The defendant had testified on direct examination that Melissa Zurich was there; that some of the parties pleaded' guilty and were required to pay fines for visiting bawdy-houses; that Melissa Zurich requested her name to be put down as Melissa Zaclc. The question was therefore strictly in cross; the answer would be material and relevant upon the question of defendant’s knowledge and intent, and the question did not assume any fact to- be true which defendant had denied or produced any proof to disprove.

Melissa Zurich had testified that McHugh and Wallace on that occasion demanded money from her and defendant had not denied it. On the contrary his testimony tended to sustain his theory that she pleaded' guilty to visiting a bawdy-house, and was fined therefor under an assumed name. The question objected to was framed so as to ascertain the amount of such fine.

(2) Another question propounded to defendant on cross-examination was: “whose duty is it collect the fines imposed by the mayor?” Several objections were urged, but only one is here argued. It is said that the question called for defendant’s legal opinion; that the ordinances of the city of Pensacola made it the duty of the marshal to collect all fines imposed, and that under

Section 11,

Chapter 4513, acts 1895, the courts are required to take judicial notice of all ordinances of said city. The answer of the witness was that he sometimes collected the fines, and sometimes sent a policeman for them. He did not literally answer the question as to whose duty it was to collect them, but stated who actually collected them, thereby recognizing it to be his duty as marshal. His answer being therefore the same in substance as the city ordinance of which the court was required to take judicial notice, we fail to see how he has been harmed. McCallum v. Driggs, 35 Fla. 277, 17 South. Rep. 407; Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 South. Rep. 597.

(3) Assignment of error No. 27 complains that the court required defendant to testify that he collected money from Mollie McCoy and saw her at her house, and assignments Nos. 28 to 33 inclusive complain that the court required him to testify as to fines imposed upon Rosa Johnson, Nellie Payne, Pauline Spencer, Mabel Spencer, Jim Goldstucker and Mary Richardson, and as to his collecting money from them. All of this testimony except that relating to Mary Richardson was objected to as not being in cross, and as being irrelevant and immaterial.

No grounds of objection were stated in the objections to the testimony relating to Mary Richardson and we need not further consider the assignment of error based thereon. It is argued under these assignments that defendant was forced to give testimony relating- to other offences, that might subject him to criminal prosecution, but no objection was interposed upon that ground, nor did defendant claim any supposed privilege of not answering on the ground of self crimination. We can not, therefore, consider that objection as it is presented for the first time in this court. Camp v. Hall, 39 Fla. 535, 22 South.

Rep. 792. Since the act of 1895,

Chapter 4400, when an accused person elects to avail himself of its provisions he occupies the status of a witness, becomes liable to. cross-examination as other witnesses, and what he states is subject to the tests established for weighing- the testimony of other witnesses. Hart v. State; 38 Fla. 39, 20 South. Rep. 805.

The cross-examination of all witnesses is, however, confined to the facts and circumstances connected with the matters stated in the direct examination, but when a witness testifies to' certain facts relating to a transaction in his presence, he may on cross-examination be required to testify to the whole of it. Savage v. State, 18 Fla. 909; Adams v. State, 28 Fla. 511, 10 South. Rep. 106. And he may likewise on cross-examination be required to- answer any proper question tending to discredit him. Eldridge v. State, 27 Fla. 162, 9 South. Rep. 448; Tischler v. Apple, 30 Fla. 132, 11 South. Rep. 273.

And he may also be interrogated concerning matters which, if true, are inconsistent with his direct testimony, or which render his statements on direct examination improbable, as these matters affect the credibility of his direct testimony. Haynes v. Ledyard, 33 Mich. 319; State v. Eifert, 102 Iowa, 188, 65 N. W. Rep. 309, S. C. 38 L. R. A. 485; Kenyon v. Kenyon, 72 Wis. 234, 39 N. W. Rep. 361; Springside Coal Mining Co. v. Grogan, 67 Ill. App. 487; Olson v. Peterson, 33 Neb. 358, 50 N. W. Rep. 155; Yeaw v. Williams, 15 R. I. 20, 23 Atl. Rep. 33; Bagley v. Mason, 69 Vt. 175.

That the defendant’s conduct with reference to demands for money made upon the parties named in the beginning of this paragraph, and as to his collecting money from them in pursuance of such demands, was a matter proper for the consideration of the jury upon the question of defendant’s intent, we have already shown. The objections to this testimony on cross-examination that it was irrelevant and immaterial were, therefore, properly overruled, and the only other objection interposed was that the evidence objected to was not properly in cross.

The defendant had testified in his direct examination regarding the occurrences at the police station on Sunday, and to the imposition of fines upon certain of the State’s witnesses there, that day. The inquiries on cross-examination relating to these matters were entirely .proper, as the witness had opened that matter for full consideration on direct examination.

Plis calling upon the parties and collecting the money in pursuance of the demands made at the police station, were but a continuation and completion of the transaction begun at the police station on Sunday, and in pursuance of appointments made that day. Inquiries relating thereto were not only admissible under the rule which authorizes cross-examination into the whole of a compíete transaction a part only of which is inquired about on direct examination, but they were proper as tending to show a course of conduct on defendant’s

part inconsistent with and tending to cast discredit upon his statements on direct examination to the effect that what was done at the “Sunday court” was in strict performance of official duty, without any design to extort money by malicious threats of criminal accusations, and that the parties were on that day fined in the police court for offences against the city ordinances upon trials regularly conducted. X.

(1) On cross-examination of defendant the following questions were asked and answers given:

(1) Q. Did not you and McHugh go around at night and visit whorehouses ? A. Yes sir.

(2) Q. For what purpose did you go ? A. On business.

(3) Q. What kind of business? A. Different kinds.

(4) Q. Is it not a fact that you went around to these whorehouses while you were marshal? A. It is not a fact. Another inquiry as to whether Wallace and McHugh were not in the habit of visiting barrooms and drinking liquor on Sunday was objected to but no exception was taken to the ruling thereon. The questions numbered x, 3 and 4 above, were objected to as irrelevant and immaterial and as tending to degrade and disgrace the defendant. The defendant was then upon the stand as a witness. In that capacity he was subject in every respect to the rules governing the examination of other witnesses.

His position of defendant did not protect him from answering every question proper to- be asked any other witness upon cross-examination. Every matter which he had voluntarily opened up on direct examination he could be required to disclose fully upon cross-examination, notwithstanding- his answers would tend to criminate, degrade or disgrace him.

Besides that being a witness and having denied any criminal intent and undertaken to justify his conduct on the Sunday in question, by stating that a police court was being held, and fines imposed, instead of extorting money by threats, his credibility was a very material matter to be considered by the jury, the same as any other witness in the case.

For the purpose of discrediting a witness a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest or animus as connected with the cause or with the parties thereto, upon which matters he may be contradicted by other evidence, and a like range of cross-examination is in the discretion of the trial court allowed into- the past life and history of the witness and as to his present employments and associates, when the matters inquired about tend to effect credibility, and while answers to questions of this nature are conclusive upon the party asking them, and may be wholly irrelevant as to the direct question of defendant’s guilt, and may tend to degrade or disgrace the witness, they are not for these reasons only to be disallowed.

But if answers to- questions of this nature would tend to criminate the witness, and he claims his privilege of declining to answer, they should be disallowed. The matter rests in the sound judicial discretion of the trial court who must judge of their propriety from what transpires upon the trial, and the course and conduct of the witness upon the stand.

The discretion of the trial court in this respect will not be interferred with unless abused, and the rule which we have announced applied to the cross-examination of a defendant when he voluntarily offers himself as a witness, to the same extent and with like limitations as to other witnesses. People v. Webster, 139 N. Y. 73, 34 N. E. Rep. 730; State v. Bacon, 13 Oregon, 143, 9 Pac. Rep. 393; State v. Murphy, 45 La. Ann. 958, 13 South. Rep. 229; Smith v. State, 64 Md. 25, 20 Atl. Rep. 1026; Hanoff v. State, 37 Ohio St. 178, S. C. 41 Am. Rep. 496; People v. Hite, 8 Utah, 461, 33 Pac. Rep. 254; Hill v.

State, 42 Neb. 503, 60 N. W. Rep. 916; State v. Pfefferle, 36 Kan. 90, 12 Pac. Rep. 406; State v. Kent, 5 N. Dak. 516, 67 N. W. Rep. 1052; People v. Noelke, 94 N. Y. 137, S. C. 46 Am. Rep. 128; Burdette v. Commonwealth, 93 Ky. 76, 18 S. W. Rep. 1011; 3 Taylor on Evidence, (9th ed. notes by Chamberlayne), note page 978 39' The rules which should govern the trial court in exercising its discretion in allowing or disallowing inquiries into- collateral matters to affect credibility, do not authorize any question to be put for the sole purpose of disgracing the witness.

The court should disallow all inquiries into' collateral matters which do not tend to affect credibility. The inquiry must in general though not necessarily always relate to transactions comparatively recent, and the transaction inquired about must be one which bears directly upon the present character or credit of the witness. Inquiry into collateral matters should not be permitted unless there is reason tO' believe it may tend to promote the ends of justice, and it seems essential to the true estimation of the witness’ testimony by the jury.

The court should promptly suppress all inquiry into matters not relevant, to credit and should not permit a disparaging course of examination which seems unjust to the witness and uncalled for by the circumstances of the particular case. Great Western Turnpike Road Co. v. Loomis, 32 N. Y. 127, S. C. 88 Am. Dec. 311; Carroll v. State, 32 Tex. Cr. Rep. 431, 24 S. W. Rep. 100. Tested by these rules we can not say that the court abused its discretion in permitting the questions stated.

They were framed so that an affirmative answer would secure an admission of the ’ conduct inquired about while Wallace was marshal and McHugh mayor, and such conduct would have constituted an antecedent in the life of Wallace the knowledge of which would assist the jury in placing an accurate estimate upon his statements as a witness. Greenleaf on Evidence, §§455-459. The questions being proper if the answers were objectionable the defendant should' have moved to strike them. Ortiz v. State, 30 Fla. 256, 11 South. Rep. 611.

(2) Another question objected to as irrelevant and immaterial was: “Didn’t Mr.

McNeil -in his sermon about which we have been talking say that you and McHugh were in the habit of laying around barrooms on Sunday and ringing up drinks with electric bells?” to which he replied, “I did not know he said it in his sermon.” The State’s theory evidently was that McNeil’s sermon had given public notoriety to the “Sunday court,” that reading this sermon and hearing it discussed caused Wallace and McHugh to know that they were suspected of improper conduct as officers and with respect to the “Sunday court,” and in consequence thereof to suppress evidence by purloining the turnkey’s docket.

The defendant to show that this theory was untrue stated on direct examination that he had read the sermon and there was nothing in it to hurt him. The question asked on cross-examination was proper, because if answered affirmatively it would have tended to show that there was something in the. sermon which hurt him. The answer, however, denied that the sermon contained the charge asked about, and the State offered no evidence to contradict it. XI.

The defendant requested and the court refused an instruction which, among other things, told the jury that “in order to convict the defendant you must be convinced from the information beyond all reasonable doubt that the defendant as marshal of said city made the threat charged in the information, and that such threat was maliciously made;” that the truth of the matter as to whether Marie Anderson did not keep a bawdy-house was to- be considered by the jury as bearing upon the question of defendant’s intent, or whether the threat was maliciously made, and that if the jury believed frpm the evidence that a threat was made by defendant to accuse Marie Anderson of keeping a bawdy-house against the ordinances of the city of Pensacola, but that the threat was made by him as a public officer, in good faith, without malice toward Marie,.

Anderson or intention to extort money from her, they should find him not guilty. This instruction did not require the' jury to base their verdict upon the evidence in the case, but authorized them to- “be convinced from the information” of the facts necessary to find him guilty. In all other respects the substance of this instruction was embraced in the general charge of the court, and it was properly refused. XII.

Another instruction requested by the defendant and refused by the court was to the effect that keeping a bawdy-house was an offence against the State laws as well as the city ordinances, and that if the jury believed from the evidence that threats were maliciously made by defendant to accuse Marie Anderson of keeping a bawdy-house and that such threats were of an offence under the laws of the State, instead of the ordinances of the city, “and no- threats relating to the ordinances of the city having been made,” then they should find defendant not guilty.

This instruction was properly refused because it not only assumed as a fact that no threats relating to the city ordinances were made by defendant, while there was evidence to the contrary, but because there was no evidence of a threat to accuse Marie Anderson of any offence under the laws of the State. XIII. The defendant requested the court to instruct the jury to the effect that under the ordinances of the city of Pensacola it is the duty of the marshal to obey the orders of the mayor, to cause the police force to obey the same, and to attend to the mayor’s office whenever the mayor directs him to' do so.

These instructions correctly defined certain duties of the marshal under the ordinances mentioned, but we do not think the court erred in refusing them, because they would have had a tendency to mislead the jury into' the belief that however illegal and with whatever criminal intent defendant may have acted on the occasion shown by the evidence, if he was obeying the orders of the mayor, he was simply performing an official duty.

The court instructed the jury that in considering the evidence they should keep in view two main facts to be proved by the State: first, did defendant maliciously threaten to accuse Marie Anderson of keeping a bawdy-house; second, if so, was the charge made with intent to extort money from her.

After defining the words maliciously and intent, the court stated that the word intent in connection with extort signified a premeditated design on the part of the defendant to cause Marie Anderson to pay money which she had not legally been adjudged to pay and which defendant had no reason to believe she would be legally adjudged to pay, and that if the jury believed from the evidence beyond a reasonable doubt that defendant in. his capacity as city marshal, acting with Pat McHugh, as mayor, caused Marie Anderson to come before them on Sunday when no court was being held, and threatened her with prosecution for keeping a bawdy-house, and at the time had no good reason to believe that he was acting legally, and that the threat was made with intent on defendant’s part to extort money from Marie Anderson, then they should find defendant guilty as charged; and that it was for the jury to say from all the evidence whether defendant did, as-a matter of fact, believe that he was acting regularly and legally.

No exceptions were taken to these instructions, and they seem to have fully covered the question as to the legality of defendant’s acts and his belief in their legality, while the instruction requested by defendant would have conveyed the erroneous idea above stated. XIV. The court instructed the jury that defendant is presumed by the law to be innocent; that the burden was upon the State to establish his guilt beyond a reasonable doubt; that “a reasonable doubt is a doubt for which you can give a reason.

In other words, if the evidence of defendant’s guilt satisfies you to such an extent as to leave you without a doubt that he may be innocent, for which you can give an intelligent reason, then it would be your duty to convict. Such a doubt may arise either from affirmative evidence tending to show the defendant’s innocence or from the lack of evidence sufficient to' establish his guilt.” In Lovett v. State, 30 Fla. 142, 11 South.

Rep. 550, this court very carefully and explicitly laid down a definition of the phrase “reasonable doubt,” and while that definition, like all others that have ever been attempted, when closely analyzed, fails to convey a meaning much more definite to the ordinary mind than the simple words “reasonable doubt,” it has been repeatedly approved by the courts of this country, and it certainly carries as clear an idea of a reasonable doubt as any other combination of words ever attempted. As we have held that it is error to refuse to instruct the jury as to the meaning of reasonable doubt (Reeves v.

State, 29 Fla. 527, 10 South. Rep. 901), and the phrase is so difficult of precise definition, it would be well for trial judges to adopt the well-settled definition declared in the Lovett case, rather than experiment with new formulas upon. this branch of the law. We do< not find that the exact language here used has ever been passed upon by an appellate court. An instruction to the effect that a reasonable doubt “is a doubt for having which the jury can give a reason based upon the testimony,” was disapproved in Cowan v. State, 22 Neb. 519, 35 N. W. Rep. 405; Carr v. State, 23 Neb. 749, 37 N. W.

Rep. 630, because, as the court said, it failed to correspond with the definition given by Chief-Justice Shaw in Commonwealth v. Webster, 5 Cush. 295, S. C. 52 Am.Dec. 711, though the court did not undertake to state the difference in the substantial meaning of the two

definitions. In Morgan v. State, 48 Ohio St. 371, 27 N. E. Rep. 710, an instruction that “by reasonable doubt is not meant a captious or whimsical doubt, but' a doubt that you as a juror can give a reason for,” was held to be inaccurate. The court asked “what kind of a reason is meant? Would a poor reason answer, or must the reason be a strong one? Who is to judge? To whom is the reason to be given? To the juror himself?

The charge does not say so-, and jurors are not required to assign to others reasons in support of their verdict.” Judge Minshall, however, dissented from these criticisms upon the instruction, insisting that it was free from error. In Siberry v. State, 133 Inch 677, 33 N. E.

Rep. 681, an instruction that “a reasonable doubt is such a doubt as the jury are able to give a reason for,” was condemned upon the ground that it puts upon a defendant the burden of furnishing to- every juror a reason why he is not satisfied of his guilt with the certainty which the law requires, before there can be a conviction, and that we sometimes have doubts in relation to- things for 'which we can give no reason, and of which we have imperfect knowledge. The accuracy of instructions of this nature was doubted in State v. Sauer, 38 Minn. 438, 38 N. W. Rep. 355, and People v. Stubenvoll, 62 Mich. 329, 28 N.

W. Rep. 883. See, also, 3 Rice on Evidence, p. 437, §270. On the other hand, instructions to- the effect that a reasonable doubt is “a doubt for which a reason could be given,” or one “for which some good reason arising from the evidence may be given,” or “a serious sensible doubt such as you could give a good reason for,” or one “for which some fair just reason can be given, have been approved in Hodge v. State, 97 Ala. 37, 12 South. Rep. 164; Ellis v. State, 120 Ala. 333, 25 South. Rep. 1; People v. Guidici, 100 N. Y. 503, 3 N. E. Rep. 493; State v. Jefferson, 43 La. Ann. 995, 10 South.

Rep. 199; United States v. Johnson, 26 Fed. Rep. 682; United States v. Jones, 31 Fed. Rep. 718; State v. Rounds, 76 Me. 123. The authorities pro and con. are very fully considered in State v. Morey, 25 Oregon, 241, 35 Pac.

Rep. 655, and the court declined to reverse a conviction because the trial judge in his definition of reasonable doubt stated that it was “such a doubt as a juror can give a reason for.” It was admitted that this languag'e was subject to the criticism that it did not define; but needed defining, but the court held that in connection with other instructions given upon the same subject the jury were not misled, and that case is approved in State v. Serenson, 7 S. Dak. 277, 64 N. W. Rep. 130; 2 Thomp. Trials, §2476. In People v. Barker, 153 N. Y. 111, 47 N. E.

Rep. 31, it is said that a reasonable doubt must be founded in reason, and must survive the test of reasoning or the mental process of a reasonable examination. In this State we have held that the doubt authorizing an acquittal is a reasonable, sensible one, not an unreasonable, capricious, whimsical, speculative, imaginary or forced one, or a mere possible one or one which is suggested or engendered by something outside of the evidence. Lovett v. State, 30 Fla. 142, 11 South. Rep. 550; Woodruff v. State, 31 Fla. 320, 12 South. Rep. 653.

We are of opinion that the instruction complained of does no more than to' state in a different form the same thing as that defined in other language in the Lovett and Woodruff cases.

It tells the jury that the burden is upon the State to establish defendant’s guilt beyond a reasonable doubt — that is beyond a doubt for which they can give an intelligent reason — that this doubt may arise either from affirmative evidence tending to show innocence, or from lack of evidence sufficient to establish guilt; but that if the evidence of guilt satisfies them to such an extent as to leave them without a doubt that defendant may be innocent for which they can give an intelligent reason, they should convict.

This instruction puts no burden upon the defendant to' furnish the jury with a reason, but it requires the State to’ satisfy the jury of defendant’s guilt to such an extent as to leave their minds without a doubt that defendant may be innocent, for which they can give an intelligent reason. Of course the jury are not required to state reasons for their verdict, but they are nevertheless required by the law and by their duties as jurors to act in the jury box as reasonable beings, and to* exercise their reasoning faculties in passing upon the life or liberty of accused persons.

If they entertain a doubt they must as reasonable men know upon what that doubt is based, and they aré required to examine into the nature and origin of the doubt far enough to ascertain that it is a reasonable one. And if it be found that no intelligent reason can be given for entertaining a doubt, how can the conscience of the jury be satisfied with a verdict of acquittal resting as it does under a solemn duty to convict where the evidence convinces them of guilt to that extent as to leave no reasonable doubt upon their minds.

To authorize an acquittal because of some vague, undefined, unintelligible or inexplicable ■ misgiving, is to eliminate the word “reasonable” from the definition. XV.

The court instructed the jury that “the keeping of a bawdy-house is an offence against the ordinances of the city of Pensacola, and if the defendant threatened to- turn Marie Anderson over to' the criminal court for keeping a bawdy-house unless she paid money, this would be threatening to accuse her of a crime against the ordinances of the city of Pensacola.” The only criticism upon this; instruction suggested by plaintiff in error is that it authorized the jury to find defendant guilty, although there was a substantial variance in the proof, in that it authorized them to' find him guilty under an indictment charging malicious threats to accuse of a crime against the city ordinances upon proof of malicious threats to accuse of a crime against the State laws.

There being no evidence whatever of a threat to accuse Marie Anderson of a crime under the State laws, or to turn her over to any State criminal court, we must assume that the jury understood, the judge to mean by the term “Criminal Court” the court authorized to try offences against the ordinances of the city.

There is nothing in the language of the charge which indicates that the judge had reference to the “Criminal Court of Record of Escambia County,” or any other court having jurisdiction of State offences, and there was certainly no evidence which even suggested a threat on defendant’s part to accuse Marie Anderson of an offence under the State laws. > If the jury understood the instruction in the light of the evidence, as we must assume that they did, they could not have understood from the charge that a variance of the ' nature suggested would be immaterial. XVI.

The only other assignment of error argued, except the one discussed in the next succeeding paragraph of this opinion, relates to the order overruling the motion for a new trial. This assignment presents the question as to the sufficiency of the evidence to sustain the conviction. We are of opinion that the evidence is sufficient to sustain the verdict, and that the court below committed no error in overruling the motion for a new trial. XVÍI.

It is insisted that the sentence imposed by the court is vague and indefinite, in that it requires the imprisonment to begin at the “expiration of first sentence,” without stating the nature, duration or time of expiration of the first sentence, or by what court it was imposed.

Some of the American courts hold that without an express statute authorizing it, the sentence in felony cases can not be SO' framed as to make the term of imprisonment begin at the expiration of a former sentence, but we hold that under the discretion vested in. the judges in this State as to the duration of terms of imprisonment to be fixed by them upon convictions for felonies, and in accordance with common law principles and the manifest intention of our criminal laws to punish separately each offence committed against them, that in all criminal convictions where the sentence is to a term of imprisonment; the court can in its discretion fix the term so that it will begin at the expiration of a former sentence.

Russell v. Commonwealth, 7 Serg. & R. 489; Kite v. Commonwealth, 11 Met. 581; Williams v. State, 18 Ohio St. 46; In re. Packer, 18 Colo. 525, 33 Pac. Rep. 578; 1 Bishop’s Crim. Proc. §1327. While this may be done, it is of great importance to the prisoner that the sentence should be definite and certain so as to advise him and the officer charged with its execution of the time of its commencement and termination, without being- required to inspect the records of another court, or the record of another case. Picket v. State, 22 Ohio St. 405; 1 Bishop’s Crim. Proc. §1297.

The sentence in this case refers to' a “first sentence,” but there is nothing in this record, or in the language of the sentence to advise us for what offence or in what court such “first sentence” was imposed, or when it began, or where it was to be executed, or for what period of time it was imposed. The sentence is erroneous because vague and indefinite. We find no error in the record sufficient to reverse the judgment against the defendant, except in the sentence imposed.

This error does not authorize us to grant a new trial in the case, but only to reverse the judgment and remand the cause for the imposition of a proper sentence. Williams v. State, 18 Ohio St. 46; Bueno v. State, 40 Fla. 160, 23 South. Rep. 862. Because of the error in the sentence the judgment is reversed, and the cause remanded with directions to the court below to pass proper sentence upon the defendant in accordance with law.