State v. Brown
| Decision Date | 01 December 1914 |
| Citation | 144 P. 444,73 Or. 325 |
| Parties | STATE v. BROWN. |
| Court | Oregon Supreme Court |
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.
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 apparently the authorities are in hopeless conflict as regards the culpability of the defendant under such circumstances. The precedents in his favor proceed upon the theory that no one can commit a crime in the absence of any intent to do so. This is the keynote of all the utterances on that subject so far as our investigation goes, and there are many eminent jurists who press this doctrine with great persuasiveness. The decisions to the contrary are based upon the doctrine that in statutory crimes, unless there is incorporated into the legislative definition the element of knowledge on the part of the defendant, the intent with which the act was done is not an ingredient of the offense. This feature is the differentiating characteristic between the two classes of cases. The courts of this state are committed to the latter doctrine.
In State v. Chastain, 19 Or. 176, 23 P. 963
In State v. Gulley, 41 Or. 318, 70 P. 385, the defendant was found by a special verdict to have sold liquor in good faith to one who represented himself to be more than 21 years of age but who in fact was a minor. The court held by Mr. Chief Justice Moore that:
"In prosecutions for distinctly statutory offenses, such as selling liquor to minors, for example, where the statute does not make guilty knowledge an element, it is unnecessary to show an intent to violate the law, and that defendant acted in good faith on mistaken information is not a defense."
In State v. Sterritt, 19 Or. 352, 24 P. 523, the defendant was indicted for the crime of unlawfully moving sheep infected with scab, from place to place, without first having obtained a traveling permit therefor. The defendant demurred to the indictment because it did not show that he knew the sheep were infected with scab at the time of...
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State v. Jackson
...law, omission of a requirement of knowledge from the statutory definition makes the act punishable without mens rea. State v. Brown, 1914, 73 Or. 325, 144 P. 444; State v. Wojahn, 1955, 204 Or. 84, 282 P.2d 675. We have held, however, that the appearance or non-appearance of the word 'knowi......
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State v. Cox
... ... prohibitum, and not malum in se, it is not requisite to prove ... a criminal intent. State v. Chastain, 19 Or. 176, 23 ... P. 963; State v. Sterritt, 19 Or. 352, 24 P. 523; ... State v. Gulley, 41 Or. 318, 70 P. 385; State v ... Brown, 73 Or. 325, 144 P. 444; State v. Wilbur, ... 85 Or. 566, 166 P. 51, 167 P. 569 ... The ... second exception merits more careful consideration, but must ... be decided upon the same principles which underlie the ... precedents already cited, namely, that ... ...
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...on the part of the accused was not required and that the statute imposed strict liability. Id. Twelve years later, in State v. Brown, 73 Or. 325, 144 P. 444 (1914), the Court reaffirmed its holding in Gulley and again held that the statute defined a strict liability offense. In 1933, the ye......
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