a house, and that it was "resorted to for the purpose of prostitution or lewdness." First noticing the questions and admitted answers over objection, and motions to strike out on the ground of a conversation had without the presence of appellant, it is sufficient to say that the statements of the girls as to price, that they were examined each week by a doctor, and on a particular evening "they had a few more (girls) working," considered in connection with all the circumstances present, and the conversation certain witnesses claimed to have had with appellant on the same evening on the same subjects, corroborative of the girls, except no mention of price was admissible. 18 C. J. 1269, § 98.

[2] Over objection because not in issue, the state was permitted to show by two witnesses that the general reputation of the appellant for chastity and virtue was bad. On the question of the admission of such evidence, the decisions of the courts of last resort in the various jurisdictions of this country are in direct conflict. State v. Hull, 18 R. I. 207, 26 A. 191, 20 L. R. A. 609, and note; 9 R. C. L. 226, § 11; 18 C. J. 1268, § 97. This jurisdiction, however, seems to have adopted the Wisconsin and South Carolina rule (State v. Brunell, 29 Wis. 435; State v. McDowell, Dud. [S. C.] 346), permitting the state to make such proof as a part of its original case. Betts v. State, 93 Ind. 375, 378; Whitlock v. State, 4 Ind. App. 432, 30 N. E. 934. See, also, Sparks v. State, 59 Ala. 82; State v. Hendricks, 15 Mont. 194, 39 P. 93, 48 Am. St. Rep. 666; 18 C. J. 1268, § 97.

[3, 4] Secondly, looking to the evidence before the jury most favorable to the state, as we must do, we have witnesses, one claiming to be an investigator for the United States Public Health Service, and another who said he was engaged in the cleaning and dyeing business, both of Hammond, Ind., testifying that they had made a number of visits between February 21 and June 16, 1924, to No. 1121 Washington street, in Gary, Ind., which number had reference to a two-story building, the ground floor front occupied as a cigar and soft drink stand, and in the rear thereof living rooms. The second story had five or six bedrooms and a general reception room at the head of the stairs. These witnesses noted the dates of five of their visits and stated that they were there a number of other times of which they made no memorandum. On each of the five occasions, usually between 8 and 10 o'clock in the evening, without objections from any one, they inspected the premises upstairs and down. On each of these visits they observed men in the room at the head of the stairs, and three or four girls, variously clad, going and coming from the bedrooms with men, and inviting men into their rooms. On one of these occasions, on invitation of one of these girls, pajama

dressed, the investigator accompanied her to her bedroom, closed the door, remained there from 10 to 15 minutes, during which time he was told that she was examined once a week, and the price was $2. These witnesses also referred to in interview had with this appellant in which she told them that she had her girls examined every week, that she was running a clean place, and that she was the owner and had charge of the building. A doctor of Gary testified that during the months of May and June he visited 1121 Washington street, Gary, three or four times and made a vaginal examination of some "women or girls there," and was paid by the party examined; did not know appellant, and made these calls at the request of another doctor of Gary.

[5] It will serve no good purpose to give further recital of the state's evidence covering 58 typewritten pages of the record, or refer to the evidence on behalf of appellant, some of which tended to show she controlled the building, for if there is legal evidence, circumstantial or conflicting, to support the verdict, it is not our province to interfere with it. There was evidence before the jury tending to support each essential element of the offense charged. Hence we cannot disturb the judgment of the trial court. Judgment affirmed.

4. Criminal law 274—Overruling of motion to permit withdrawal of defendant's plea of guilty held not abuse of discretion, where motion failed to state defendant was not guilty of crime charged.

Where motion by defendant to withdraw plea of guilty failed to state that defendant was not guilty of the crime charged, no sufficient cause for withdrawal was shown and overruling of the petition was not abuse of discretion.

5. Criminal law 905-Where judgment has been rendered upon plea of guilty, motion for new trial is ineffectual.

A motion for new trial is ineffective in a case where judgment has been rendered upon plea of guilty.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Clyde Capps was convicted of violating the prohibition law, and he appeals. Af

firmed.

Joseph T. Markey, of Indianapolis, for appellant.

U. S. Lesh, (Mrs.) Edward Franklin White, and Fred I. King, all of Indianapolis, for the State.

WILLOUGHBY, C. J. The appellant was convicted of a violation of the prohibition law. The prosecution was by affidavit in the city court of Indianapolis. The record shows that the appellant pleaded guilty in the city court and judgment was rendered against him on that plea. From such judgment he appealed to the criminal court of Marion county, where judgment was again rendered against him on a plea of guilty, and from such judgment this appeal is taken.

After the appeal had been taken to the Marion criminal court, the, appellant filed a motion to withdraw his plea of guilty and be permitted to enter a plea of not guilty. He claimed, in an affidavit filed with his motion to withdraw the plea of guilty, that he had not entered a plea of guilty in the city court. This was denied by the state, and the appellant submitted evidence to the trial court, which, after hearing such evidence, refused to permit him to withdraw the plea of guilty.

[1] Whether one duly charged with a crime may withdraw a plea of guilty entered by

discretion that an impartial judge should exercise. On an appeal for review, as the presumption is in favor of the ruling of the trial court, its denial of an application to be permitted to withdraw a plea of guilty and to plead not guilty and defend will, as a rule, be sustained where the record discloses no ground for the application, or where it appears from the record that the court's ruling was based on conflicting evidence which it was compelled to weigh to reach a conclusion. Monahan v. State, 135 Ind. 216, 34 N. E. 967; Rowe v. State, 191 Ind. 536, 133 N. E. 2; Pattee v. State, 109 Ind. 545, 10 N. E. 421; Conover v. State, 86 Ind. 99.

1

[2] A motion asking leave to withdraw a plea of guilty is addressed to the sound legal discretion of the trial court, and, in the absence of an affirmative showing that its discretion was abused, the overruling of such plea is not error. And if appellant was really guilty of the offense charged against him as his plea of guilty admitted and his petition for leave to withdraw the plea did not deny, it was not an abuse of discretion to refuse to allow him to withdraw such plea of guilty. Carr v. State, 194 Ind. 162, 142 N. E. 378; Blackburn v. State, 195. Ind. 603, 145 N. E. 486, 146 N. E. 398.

[3] The Supreme Court will indulge in such presumptions as will sustain the action of the trial court, rather than overthrow it. Farnsley v. State, 196 Ind. 722, 149 N. E. 436; Blackburn v. State, supra.

[4] In the instant case, the affidavit filed in support of appellant's motion to be permitted to withdraw his plea of guilty, and the motion itself, did not state that the appellant was not guilty of the crime charged against him. The petition for leave to withdraw the plea of guilty fails to show sufficient cause for such withdrawal. No abuse of discretion is shown in overruling such petition. Blackburn v. State, supra.

[5] The appellant further says that the court erred in overruling his motion for a new trial. A motion for a new trial is ineffectual in a case where judgment has been rendered upon a plea of guilty. Meyers v. State, 156 Ind. 388, 59 N. E. 1052; Jackson v. State, 161 Ind. 36, 67 N. E. 690; Carr v. State, supra; Ewbank's Criminal Law, § 554.

FEHLMAN et al. v. STATE. (No. 25161.) Supreme Court of Indiana. April 17, 1928.

1. Criminal law 306-Inference cannot be based on another inference.

The rules of evidence do not permit an inference based on another inference.

2. Criminal law 369 (7)-In burglary prosecution, evidence of recovery of articles having reference to a collateral crime held inadmissible (Burns' Ann. St. 1926, § 2446).

In prosecution under Burns' Ann. St. 1926, § 2446, for burglary in the first degree, evidence pertaining to articles recovered by means of a search warrant, which evidence unquestionably had reference to the commission of an offense entirely distinct from that for which defendants were being tried, held inadmissible; there being no showing of necessity for admission of such evidence.

4. Criminal law 814(2)—Where evidence of collateral crime was inadmissible, instruction permitting jury to consider it for purposes of determining intent and system was erroneous.

Where evidence relative to collateral crime was erroneously admitted, instruction that, though such evidence was not admitted to prove directly commission of crime charged, yet it could be considered in connection with all other evidence in determining intent of defendants, weight and credibility of their testimony, their motive, and whether or not alleged crime, was part of criminal program or system, held erroneous, since, if evidence was inadmissible because not within range of offense charged, it was not admissible for other purposes.

8. Criminal law 327-Burden of proof never shifts to defendant.

The burden of proof never shifts to the defendant in a criminal prosecution.

9. Criminal law 829(9)-Refusing request. ed instruction that burden never shifts to defendant held not error, in view of instructions given relative to burden of proof and presumption of innocence.

In prosecution for burglary, court's refusing requested instruction that burden of proof never shifts to defendant held not error, in view of other instructions given relative to state having burden of proof and presumption that defendant charged with crime is innocent until proved guilty beyond a reasonable doubt.

10. Criminal law 806 (1)-Trial court is not justified in emphasizing any particular phase of case by repeating propositions of law in instructions, however applicable.

A trial court, although requested so to do, is not justified in emphasizing any particular phase of a case by repeating propositions of law in instructions, however applicable the propositions may be.

11. Criminal law 798 (1)-Defendant is entitled to instruction that juror must be satisfied from evidence that each essential element of crime has been proved beyond reasonable doubt before finding defendant guilty.

Defendant in a criminal case is, on request, entitled to complete and specific instruction, applicable to each individual juror, that juror must be satisfied from the evidence that each essential element of the crime with which defendant is charged has been proved beyond a reasonable doubt before consenting to finding defendant guilty.

12. Criminal law 1168 (2)—Injection into burglary case, by evidence admitted and excluded, of extraneous crime of larceny held to require reversal of conviction.

In prosecution for burglary, that evidence was admitted and also evidence proffered but excluded, tending to show that one of the defendants was guilty of larceny, held to require reversal as injecting into the case the element of larceny, an extraneous crime, having no connection with the offense charged.

13. Criminal law 371 (6)-Evidence of distinct crime of larceny held not admissible in burglary prosecution on theory intent was equivocal (Burns' Ann. St. 1926, § 2446).

In prosecution under Burns' Ann. St. 1926, § 2446, for burglary in the first degree, evidence that defendant had committed larceny at another time held not admissible on theory that intent in the case in question was equivocal.

Appeal from Newton Circuit Court; George A. Williams, Judge.

Gerald Fehlman and Jennie Miller were convicted of burglary in the first degree and they appeal. Reversed, with instructions to grant new trial.

Chas. M. Snyder, of Fowler, Ray R. Cummings, of Kentland, James C. Murphy, of Morocco, and Hanley & Hanley, of Rensselaer, for appellants.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

MYERS, J. Appellants, by an amended affidavit, were charged with burglary in the first degree. Section 2446, Burns' Ann. St. 1926. Trial before a jury and verdict of guilty as charged in the affidavit. On this verdict the court rendered judgment against each of the appellants.

The overruling of appellants' several motions for a new trial is the only error relied on for a reversal of the judgment. The causes assigned in support of this motion and not waived challenge the court's rulings in refusing to give certain of their tendered instructions; the giving of an instruction by the court upon its own motion; the refusal to admit, and in admitting, certain testimony.

A brief statement of this case, as it appears from the evidence, may assist in a better understanding of the questions presented and their disposition. On June 16, 1924, in the nighttime, the farm dwelling house of Jennie M. Conrad, situate about 30 rods from the village of Conrad, Ind., and in which she then resided, was burglarized and a quantity of jewelry, currency, and travelers' checks belonging to Mrs. Conrad, and by her kept in a dresser drawer in her bedroom, was taken and carried away. At that time appellant Miller, with her husband, Joe Miller, resided on a farm about 8 miles from the Conrad home. Mr. Miller, during the years 1922 and 1923, was employed continuously by Mrs. Conrad in promoting her farm interests. During the week he usually lodged at the tenant quarters and would go home each week-end. His wife, this appellant, two or three days each week from the last of July, 1923, until about the first of February, 1924, did housework for Mrs. Conrad, going and returning to her own home each day. Alfred Caul, in the spring of 1923 and until about February 1, 1924, when he left for Hammond, Ind., made his home with the Millers, and during part of which time he assisted Mrs. Miller in the care of horses, cattle, and hogs for his board. Caul, while living at the Miller home, was at Conrad's a "few times" and did some work there. At Hammond he obtained employment, but soon thereafter he was arrested, pleaded guilty to a larceny charge, sentenced to pay a fine and to be imprisoned for 160 days, which sentence was suspended.

A short time after Caul left the Millers, they employed appellant Gerald Fehlman, who remained with them several months after the alleged burglary. On October 13, 1924, Caul returned to the Miller home, and finding no one there entered the house, took a revolv

er, a $100 Liberty bond, $87 in money, a white sapphire ring, two checks, one given to Mrs. Miller by her husband and one to her by a Mr. Beagley, a key to a Ford machine, a safety box key, and left a note of warning. That night Mrs. Miller and Fehlman went to Hammond, notified the police of the robbery, and then returned home. Three days later, October 16th, Caul was arrested, and on the next day he was given into the custody of the sheriff of Newton county. He escaped from the Newton county jail, but was recaptured and rejailed. Originally, Caul and these appellants were jointly charged by affidavit with the Conrad burglary. That affidavit was dismissed, and on October 12, 1925, appellants alone were, by affidavit, charged with that offense. On November 2, 1925, the latter affidavit was amended and trial thereon was

had January 20, 1926. Caul, then under an arson charge and at liberty on his own recognizance, was the principal witness for the state, and testified that on Saturday before June 16, 1924, he was at the Miller home, and the question of robbing Mrs. Conrad of her money and jewelry was discussed by the witness, Mrs. Miller, and Fehlman. Mrs. Miller told where the Conrad property was kept and how it could be gotten. It was then agreed that the witness and Fehlman should attempt to get it, and whatever was obtained should be divided one-third to each of the three. Further testifying, he said that on the night of the Conrad burglary, he and Fehlman left the Miller home, walked to Enos, Ind., took a freight train to Conrad, and then walked to near the home of Mrs. Conrad, where they waited until she retired. They then obtained some gasoline, poured it on the ground at the rear of the house, and "set it afire" for the purpose of attracting the attention of Mrs. Conrad. Failing in this, they followed Mrs. Miller's suggestion to catch a chicken and "make it squawk," which they did, and Mrs. Conrad came out at a rear door. They then hurried to the front of the house, cut the front door screen, opened it and the door, both entered, followed Mrs. Miller's instructions, located the dresser in which the money and jewelry were kept, and from which the witness took the articles and gave them to Fehlman. When Mrs. Conrad came in at the rear of the house, they both went out at the front and then to the station at Conrad, where they divided the booty, two-thirds to Fehlman, and the witness one-third, who took a freight train from there to Hammond. The articles taken by the witness as his share were four rings, travelers' checks, a watch, diamond broach, and part of the currency. At Hammond he cashed one of the travelers' checks, sold the rings, and lost the broach, and the "rest of the checks and the watch they (officers) got." The Newton county sherif testified that he received from the Hammond police a revolver, a ring, money, and a $100 Liberty bond.