(16 Okl. Cr. 599) (185 P.) JACKSON v. STATE. (No. A-3301.) (Criminal Court of Appeals of Oklahoma. Dec. 15, 1919.) (Syllabus by the Court.) derhill on Criminal Evidence, 475; Wharton on Criminal Evidence, § 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 1. GAMING 97(4)—EVIDENCE AS TO REPU- possession intoxicating liquors. By analogy the TATION OF PLACE. In a prosecution for opening and conducting a particular gambling game, the general reputation of defendant's place of business is inadmissible. 2. GAMING 98(1)—INSUFFICIENCY OF EVIDENCE ΤΟ PROVE CONDUCTING GAMBLING GAME. In such a prosecution, where there is no evidence to show that the defendant either opened or conducted the game, or aided and abetted therein, the evidence is insufficient to support the conviction. 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 neither in the adjudicated cases nor 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. St., 9 Oklahoma Criminal, 172 [130 Pac. 1175]. In this case, the court expressly decided that one's reputation is inadmissible to prove one to be a common gambler, Appeal from District Court, Okmulgee which decision and ruling renders reputation County; Mark Bozarth, Judge. H. W. Jackson was convicted of the crime of "opening and causing to be opened, and conducting a certain game," and sentenced to pay a fine of $500, and to serve a term of imprisonment in the state penitentiary for five years, and he appeals. Reversed and remanded, with directions. E. M. Carter, of Okmulgee, for plaintiff in error. evidence at least equally as inadmissible in a case of conducting a specific game. "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." [2] While the evidence in this case shows that a white man and a negro were engaged S. P. Freeling, Atty. Gen., and W. C. Hall, in shooting craps in defendant's place of Asst. Atty. Gen., for the State. MATSON, J. 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. 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 in 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. [1] An examination of the record convinces the court that both of these grounds are well taken, and that the judgment should be re-structions that the same be dismissed unless versed. 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: Un-cur. 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., con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes HASTINGS v. STATE. (Criminal Court of Appeals of Oklahoma. Dec. 15, 1919.) Appeal from County Court, Tulsa County; H. L. Standeven, Judge. Joe Hastings was convicted of a violation of the prohibitory liquor law, and he appeals. Affirmed. Morse Garrett, of Tulsa, for plaintiff in error. S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State. PER CURIAM. Plaintiff in error, Joe Hastings, and T. R. McCullough, were tried and convicted on an information charging that they in Tulsa county on the 14th day of October, 1917, did have in their posses-ings, was tried and convicted on an information PER CURIAM. Plaintiff in error, Joe Hastsion six quarts of gin, two quarts of whis- charging that in Tulsa county, on the 22d of ky, and 69 half pints of whisky, with the August, 1917, he did have in his possession 86 unlawful intention to sell the same. The half pints of whisky, 57 quarts of whisky, and punishment of plaintiff in error was fixed 36 bottles of beer, with intent then and there at imprisonment in the county jail for 60 to sell the same; and in accordance with the days and a fine of $200. From the judg-fined in the county jail for 90 days and to pay verdict of the jury he was sentenced to be conment rendered on the verdict, he appeals. The errors assigned question the sufficiency of the evidence to sustain the verdict. a fine of $200 and the costs. From the judgment he appealed by filing in this court on April 24, 1918, a petition in error with case-made. The state relied for this conviction on the testimony of Carl Lewis, who testified that, in executing a search warrant on the date alleged, he found in the basement of the defendant's residence the intoxicating liquors described in the information, and the defendant told him that he was the owner of the same. This was all the evidence in the case. The only testimony is that introduced by the state. It is as follows: G. H. Blaine, a police officer, testified that he was acquainted with Joe Hastings and his code fendant; that he saw Hastings on the date alleged at a garage in the city of Tulsa; that he and another officer were watching the garage, and they saw a car drive in the alley which stopped in the rear of the garage, and the defendant Hastings lifted out a sack of whisky and took the same into the garage; that he and the other officer went in, arrested the defendant Hastings, and took the whisky; that they also found a plant located in the concrete floor of the garage and there found a large amount of whisky; that shortly afterwards he had a conversation with the defendant Hastings, and Hastings The judgment of the trial court is therefore admitted that he and his codefendant, Mc-affirmed. The errors assigned are the usual ones: That the court erred in overruling the motion for a new trial; the verdict is contrary to the law and the evidence; that the court erred in admitting, over the objection of the defendant, incompetent evidence. have failed to discover any prejudicial error, After a careful examination of the record, we and our conclusion is that the appeal in this case is wholly destitute of merit. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (55 Utah, 258) (185 P.) Original action by Barto Reteuna, guardian RETEUNA ▼. INDUSTRIAL COMMISSION. of Domineck Barda, to review compensation COMPENSATION ACT CONSTITUTIONAL. The constitutional right of the Legislature to enact a workmen's compensation law, having not only the object to secure compensation to an injured employé, or those dependent upon one killed by accident, but to relieve society of the care and support of the victims of industrial accidents, is not open to question.1 proceedings before the Industrial Commission of the State. Writ of review denied, and petition dismissed. Evans & Sullivan, of Salt Lake City, for plaintiff. Dan B. Shields, Atty. Gen., and J. H. Wolfe, O. C. Dalby, and Herbert Van Daw, Jr., Asst. Attys. Gen., for defendant. GIDEON, J. This is an original action in this court, asking for a review of certain pro2. MASTER AND SERVANT ~417(5) WORK-ceedings before the Industrial Commission MEN'S COMPENSATION; REVIEW OF DETERMI- of this state in an action entitled Barto ReNATION OF COMMISSION AS TO COMMUTATION. teuna as Guardian of the Person and Estate In view of the objects of the Workmen's of Domineck Borda, an Injured Employé, Compensation Act, embracing the protection of Plaintiff, v. Independent Coal & Coke Co. society as well as the protection of the injured employé or his dependents, the authority and discretion of the Industrial Commission, as the authorized agent of the state, in determining whether the interests of the parties would be subserved best by commutation of compensation or payment in a lump sum pursuant to Comp. Laws 1917, § 3145, is absolute, and not subject to review by the courts. The facts out of which this controversy arose are as follows: On or about April 1, 1918, one Domineck Borda was employed by the Independent Coal & Coke Company in Carbon county. On said date he was injured during the course of his employment, and the accident causing the injury arose out of such employment. These facts are not in WORK-dispute, but are admitted by both parties. DENIAL OF COMMUT- As a result of such injury the mind of said Borda became deranged to such an extent that he is mentally incompetent. On or about April 12, 1919, the district court of Carbon county appointed plaintiff, Reteuna, guardian of the person and estate of Borda, and thereafter such guardian filed an application with the Industrial Commission, defendant here, 3. MASTER AND SERVANT 385(20) - Refusal by the Industrial Commission to approve a commuted or lump sum settlement with an injured employé rendered insane by the accident, in view of the possibility that the employé might recover, etc., held not arbitrary and unlawful. 4. MASTER AND SERVANT 396-WORKMEN's asking for an award for said injury under COMPENSATION; APPROVAL BY COURT OF LUMP SUM SETTLEMENT. DISTRICT In view of Comp. Laws 1917, 3146, of the Workmen's Compensation Act, order of the district court, authorizing the guardian of an injured employé, rendered insane by the accident, to make a commuted or lump sum settlement with the employer, and to execute a release, held not even prima facie evidence of the reasonableness of the settlement, which, even in the absence of contrary evidence, the Industrial Commission was not under duty to approve, it not being within the authority of the district court to direct the guardian with respect to the amount of the compensation to be received, or when and how it should be received; such matters being within the control of the Industrial Commission. WORK 5. MASTER AND SERVANT 417(7) Where there was testimony to support the conclusion of the Industrial Commission on a question of fact, the Supreme Court will not review the commission's finding.2 1 Industrial Commission v. Daly Min. Co., 172 Pac. 301; Industrial Commission v. Evans, 174 Pac. 825; Garfield Smelting Co. v. Industrial Commission, 178 Pac. 57. 2 Industrial Commission v. Evans, 174 Pac. 825. the Workmen's Compensation Act of Utah. Comp. St. 1917, tit. 49. A hearing was regularly had on said petition on or about April 30th of that year. On May 26, 1919, an order was made, awarding to the petitioner therein $12 per week, and directing the Independent Coal & Coke Company to pay the applicant as such guardian that amount from, and including April 12, 1918, that being ten days after the injury, "until such date as the commission shall by proper order change, modify, or discontinue such compensation, less the sum of $648, theretofore received by the applicant." It further appears that on or about August 23, 1919, said guardian presented his verified petition to the district court of Carbon county, in which it was set out that the Independent Coal & Coke Company had in writing offered to pay the petitioner, as guardian aforesaid, a lump sum of $2,500 as full compensation for the injuries received by his ward while in the employ of the coal and coke company. It was likewise represented to the court that in the guardian's judgment it would be better for the interests of the incompetent and of the state of Utah that such offer of settlement be accepted. The district court thereupon made an For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The answer having admitted all of the allegations of the petition respecting the proceedings and orders made by the commission left no material issue of fact in dispute. To the affirmative allegations of the answer, which really stated conclusions of law only, a demurrer was filed by the plaintiff, and the matter was argued and submitted upon the issues presented by the pleadings. ɔrder, authorizing and permitting the guard- [tion of the compensation awarded, and that ian to make such settlement with the coal its findings and conclusions as to whether and coke company, and upon the payment commutation or settlement should be allowed by it of $2,500 to execute a full release and are final and not subject to review. discharge of said company from any and all claims growing out of the injury to said Borda. Thereafter, on or about August 28, 1919, plaintiff herein, as guardian, filed his petition with the Industrial Commission, defendant herein, setting forth his appointment as guardian, the award made by the commission May 26, 1919, and the further fact that the Independent Coal & Coke Company had in writing offered to pay in full settlement of all claims for the injuries sustained by the incompetent the sum of $2,500, and that he had been authorized and empowered by the district court of Carbon county to accept said offer and to execute and deliver a full release to said company. Such facts were stated in a verified petition, and apparently no further testimony or hearing was had by the commission on said petition. On September 9, 1919, the commission denied the petition. Thereafter this application was made to this court to review the proceedings of the commission in its refusal to approve and authorize the settlement, and praying that an order issue, directing the commission to vacate its order of September 9, 1919, and to enter an order approving said settlement in conformity with the order of the district court of Carbon county. It was claimed in the application that it would be to the best interests of society, the people of the state, and the said incompetent that said settlement be approved, and that the commission, in denying the right of the guardian to make such settlement in conformity with the order of the district court, "acted without authority, and in an arbitrary, wrongful and unlawful manner, and to the prejudice of the people of the state of Utah and the said incompetent. The application for review filed in this court is under the provisions of Comp. Laws Utah 1917, § 3148, as amended by chapter 63, Laws Utah 1919. That section as amended provides that within 30 days after the final decision of the commission on an award any one affected by the order of the commission may apply to the Supreme Court for a writ of certiorari or review. It is also therein provided that the review shall extend no further than "to determine whether or not: (1) The commission acted without or in excess of its power; (2) if findings of fact are made, whether or not such findings of fact support the award under review." It is further provided in that section as amended that the findings and conclusions of the commission on questions of fact "shall be conclusive and final and shall not be subject to review; such question of fact shall include ultimate facts and the findings and conclusions of the commission." The other subdivisions of the section provide that the Code of Civil Procedure, relating to writs of review, shall, so far as applicable and when not in conflict with the other provisions of the act, apply to the proceedings in the courts under that section, and that no court save the Supreme Court shall have jurisdiction to review, reverse, or annul any award, etc. It will thus be seen that the questions presented by this record for determination are: First, has the applicant, after having filed his claim for an award under the provisions of the Workmen's Compensation Act, the right to make settlement with his employer without the approval of the commission? and, second, if the applicant has no such right, is the action of the commission in either approving or refusing to approve such voluntary settlement thus made subject to review by this court? The Industrial Commission by its answer admitted the proceedings had before it as herein stated; admits that by its order it refused to approve or authorize a settlement by the payment of a lump sum of $2,500, but denies the authority of the district court of Carbon county to make an order binding upon it. It also denies that it would be to the best interests of the incompetent or of the people of this state that such settlement be affirmed by the commission, and denies that in refusing to approve said settlement it exceeded its No question is presented respecting the jurisdiction or acted in an arbitrary, wrong-right of the injured employé to receive comful, and unlawful manner. It avers that it had authority under the provisions of the Workmen's Compensation Act to cummute compensation into a lump sum if in its diseretion it was deemed best so to do, but that no commutation or settlement can be made without the approval of the commission, and that it has control and continuing jurisdic pensation, nor of the liability of the Independent Coal & Coke Company to pay such compensation. [1] The constitutional right of the Legislature to enact a workmen's compensation law is no longer open to question. Many of the provisions and sections of this statute have been considered by this court in at least (185 P.) three different decisions: Industrial Com. v. [ supra, has continuing power and authority Daly Min. Co., 172 Pac. 301; Garfield Smelt- to modify or change such order of award as ing Co. v. Industrial Com., 178 Pac. 57; In-in its opinion may be justified. By the produstrial Com. v. Evans, 174 Pac. 825. The visions of section 3145, under special circumbeneficent purposes of the act, and of simi- stances, when deemed advisable, it may comlar acts, have been repeatedly stated by the mute the periodical payments to one or more courts of this and other states. It has not lump sum payments. Considering the obonly for its object to secure compensation jects sought to be accomplished by the enactto an injured employé or to those dependentment, that it is not damages as ordinarily upon one killed by accident while so em- understood to be paid by the negligent employed, but to relieve society of the care and ployer for an injury to an employé, but that support of the unfortunate victims of indus- it is compensation to protect the injured trial accidents. This thought has been so party and those dependent upon him regardwell stated by the Ohio Industrial Commis less of the question of negligence, and that sion in Rosensteel v. Niles Forge & Mfg. Co., the state is an interested party, then it must reported in 7 Neg. & Comp. Cases Ann. 798, necessarily follow that the authority and disthat liberty is here taken to quote from that cretion of the commission, as the authorized decision as follows: agent of the state, in determining whether the interests of the parties concerned in any particular case would be best subserved by a commutation or payment in a lump sum, must be absolute, and not subject to review by the courts. In other words, the question for determination is one of discretion under all the peculiar circumstances of the particular case, and must be so considered, and each facts and determine the amount of case determined upon the particular facts pensation to which a claimant is entitled, but surrounding it. It is not a question, as pointto pursue the matter to final judgment in the ed out by the Attorney General, of evidence event the employer refuses to pay. In other or the weight of evidence. It must be aswords, the state, as the representative of so- sumed that the commission, in making the ciety at large, steps in and takes charge. Such original award, familiarized itself with the being the case, it follows that the individual facts surrounding the applicant, his particuclaimants, not being solely interested, cannot enter into a release which will be binding with-lar needs, and, based upon such facts, made out the consent of the state through the ac- its decision that the payments should be made tion of the Industrial Commission." periodically as authorized by the act. "The theory of workmen's compensation is based largely upon the doctrine that society | itself is vitally concerned in the prompt payment of compensation to injured and the dependents of killed employés. It is a matter relating to the promotion of the general welfare. The Industrial Commission is the instrumentality through which the state acts, and it is its duty, not only to ascertain all of the com To the same effect is the decision of the Supreme Court of Michigan in the case of 149 N. W. 971, Ann. Cas. 1916E, 886. Section 3138 of the act provides when com [3] In addition, under the particular facts sidered it a matter that the court should reas presented by the record, even if we conview, we are not prepared to say that the acts of the commission were arbitrary and unlawpensation shall be received by an employé ful. It appears from the record that the infor partial disability, and that such compen-jured employé is an Italian, that he is mensation shall be a weekly allowance. Section tally incapacitated by the accident, and that 3144 defines the powers and jurisdiction of the commission as follows: it is wholly uncertain as to how long the incompetency will last, or what form or degree such incompetence or insanity may take. While it is true that the duty of the commission is to protect the injured as well as the state, it is also true that it is incumhent upon the commission to see that no employer shall be imposed upon or required to make payment to an injured employé for any greater length of time than such injury may continue. From the evidence, it was impossible for the commission to tell or determine for what length of time the injury might continue, The injured employé was 35 years of age at the time of accident, and it is possible that he may in a very short time recover from the effects of the injury and be able to earn a livelihood and to continue the employment in which he was engaged at the time of the accident. If such proves to be the case, it would be manifestly unjust that |