Davis

Ordinarily the formal order would be the only response to a petition for rehearing.

But mistaken brevity in the opinion filed, having led counsel of recognized ability to the belief that we had based the decision on mistaken facts, prompts a departure from the rule in this instance. We have again carefully examined the evidence and specifications, only to reach the same conclusion.

All that reached the jury touching the character of the house came into the case through defendant’s agency, and the character of the inmates necessarily came with it. Strong and convincing evidence of defendant’s relations with the woman Banks was presented to the jury through the same channels, and that which came to the jury through the prosecution was admissible under well-settled rules of evidence.

The testimony of defendant alone tells the story of his relations with her. Jurors must be credited with average intelligence, and it needs no more to know that early morning visits to the room of a prostitute, borrowing money from her, and stirring her to wrath and threats by the story of contemplated marriage, indicate more than a merely casual and platonic intimacy. And when to this is added the…

The defendant was convicted of burglary, and appeals from the judgment and an order denying his motion for a new trial.

We will notice only assignments of error discussed by counsel for appellant, assuming that all others are waived.

1. It is first urged that the district attorney and his as sistant, upon the examination of witnesses, and in argument, indulged in misconduct calling for reversal, and that the trial court likewise transgressed to the detriment of defendant.

It appears from the evidence and the unchallenged statement of counsel for appellant that Lillie Banks and Bertha Hodge were inmates of a house of ill-repute in Chinatown at Auburn. The burglary charged consisted of entering the room of the former in said house with intent to commit larceny.

Bertha Hodge was the principal witness for the prosecution, and testified that after midnight on July 17, 1904, she saw the defendant go up the back stairs of this house, and presently thereafter saw him standing by a dresser in the room occupied by Lillie Banks, taking some money from the latter’s purse. That later he came out, said he wanted to see Lillie, and went the way he came. During her examination many questions…