144 P. 444 (Or. 1914), State v. Brown

• Citation: 144 P. 444, 73 Or. 325
• Opinion Judge: BURNETT, J. (after stating the facts as above).
• Party Name: STATE v. BROWN.
• Attorney: [73 Or. 327] E. E. Kelly, of Medford, and A. M. Crawford, Atty. Gen., for the State. A. E. Reames and Holbrook Withington, both of Medford, for respondent.
• Case Date: December 01, 1914
• Court: Supreme Court of Oregon

Page 444

144 P. 444 (Or. 1914)

73 Or. 325

STATE

v.

BROWN.

Supreme Court of Oregon

December 1, 1914

In Banc.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

E. G. Brown was indicted for selling intoxicating liquors to a minor. From a judgment sustaining a demurrer to the indictment, the State appeals. Reversed, and the cause remanded.

The defendant was indicted for selling intoxicating liquor to a minor. In order to settle the question involved by demurrer to the indictment, that instrument was amended by stipulation, so that the charging part reads thus; the amendment being the part in parentheses:

"The said E. G. Brown, on the 19th day of March, 1913, in the said county of Jackson and state of Oregon, then and there being, did then and there unlawfully sell to Harvey Ling intoxicating liquor, to wit, lager beer, said Harvey Ling then and there being a minor under the age of 21 years; (that said sale of liquor was not made by the defendant personally, but was made by the bartender; that said sale was not made in the presence of or with the knowledge or consent of the defendant; that said sale was contrary to express orders given in good faith from time to time by said defendant to said bartender forbidding him to sell liquor to minors); that to procure the liquor said minor represented to said bartender that he, the said minor, was over the age of 21 years."

Among other things, the objection to the indictment specified:

"That the facts stated do not constitute a crime; and that the defendant is not criminally liable for the act of an agent done contrary to specific instructions, which instructions were given in good faith, and which act was without the knowledge or consent of the defendant."

The court sustained the demurrer, and the state appeals.

[73 Or. 327] E. E. Kelly, of Medford, and A. M. Crawford, Atty. Gen., for the State. A. E. Reames and Holbrook Withington, both of Medford, for respondent.

BURNETT, J. (after stating the facts as above).

It is not directly so stated, but we assume in favor of the defendant, as the parties evidently intended, that he was conducting a place where intoxicating liquors were sold under a regular license, and employed a bartender in the prosecution of the business. On this assumption, coupled with the amended form of indictment set forth, we find that...