State v. Busick
| Decision Date | 07 January 1919 |
| Citation | 90 Or. 466,177 P. 64 |
| Parties | STATE v. BUSICK. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Union County; J. W. Knowles, Judge.
C. L Busick was convicted of a violation of the prohibition statute, and appeals. Affirmed.
On June 10, 1918, the defendant was indicted by the grand jury of Union county, charged with violation of the prohibition statute, in that he "did then and there wrongfully and unlawfully sell intoxicating liquor, by then and there selling to one William Wolf one pint of intoxicating liquor receiving therefor $1.50, lawful money of the United States." The defendant demurred to the indictment upon the ground that:
"It does not state facts sufficient in law to constitute the crime charged, or any crime, or offense; nor does the indictment conform to the requirements of chapter VII, title XVIII, of the Code of Criminal Procedure of the state of Oregon, especially in not informing this defendant what particular character of intoxicating liquor is charged whether beer, alcohol, whisky or other liquor."
The demurrer was overruled.
It appears from the record that the defendant was a druggist doing business in the town of Union; that the sale in question was of what is known as "Bitter Herb Tonic"; that the prosecuting witness, William Wolf, was employed by the office of the district attorney of Union county to make the purchase with a view of basing a criminal prosecution thereon; and that, pursuant to such employment he did make three separate purchases and then appeared as a witness before the grand jury which returned the indictment in question. The defendant was tried and convicted, and sentenced to pay a fine of $300, in default of which payment he should be confined in the county jail one day for each $2 thereof, from which sentence he prosecutes this appeal.
There are numerous assignments of error, including the overruling of the demurrer to the indictment, the failure of the court to instruct the jury to return a verdict for the defendant the giving of certain instructions, and the refusal to give certain requested instructions. Further, it is claimed that the prosecuting witness, William Wolf, was an accomplice, and that there was no corroborating evidence of the purchase made by him.
C. H. Finn, of La Grande, for appellant.
George M. Brown, Atty. Gen., and John S. Hodgin, Dist. Atty., of La Grande, for the State.
JOHNS, J. (after stating the facts as above).
The indictment was found under section 5, c. 40, p. 46, Laws of 1917, which is, in part, as follows:
"Except as hereinafter provided in this amendatory act, it shall be unlawful for any person to receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this state; and the place of delivery of any intoxicating liquor is hereby declared the place of sale."
This section is an amendment to chapter 141, p. 150, Laws of 1915, but it leaves sections 1, 2, 3, and 4 of the original act of 1915 in full force and effect, as follows:
Section 33 of the act of 1915 provides:
"In prosecutions under this act, whether begun by indictment, complaint or information, it shall not be necessary to state the kind or quantity of liquor manufactured or sold, and it shall not be necessary to describe the place where the same was manufactured or sold, except in prosecutions for the keeping and maintaining of a common nuisance as defined by this act, or when a lien is sought to be established against the place where such liquor was illegally sold; and it shall not be necessary to state the name of the person by whom the same was manufactured or sold, nor to state the name of the person to whom the same was sold; and it shall not be necessary in the first instance, for the state to allege or prove that the party charged did not have legal authority to sell such liquor, or was not within any of the exceptions provided by this act."
And in section 39 we find:
"In any such prosecution evidence of other sales of intoxicating liquor at or about the same time by the same person or at the same place to other persons shall be admissible as tending to show the character of the business in which the defendant is engaged and the probability and credibility of such testimony as may be introduced of the particular sale or sales upon which the state shall rely for conviction."
Under the provisions of these last two sections, we think the allegations in the indictment are sufficient, and the evidence of other like sales was admissible.
The defendant claimed and undertook to prove that the "Bitter Herb Tonic" was a mixture or preparation sold by many druggists for medicinal purposes, and that it was not "reasonably likely or intended to be used as a beverage." He also claimed that it did not "contain in excess of one-half of one per centum of alcohol by volume." Such questions were fairly submitted to the jury under proper instructions. The crime charged against the defendant is the sale of intoxicating liquor. The question as to whether the preparation sold was intoxicating or not was also fairly submitted to the jury. The record shows that the prosecuting witness was employed to obtain the incriminating evidence against the defendant, and that, for such purpose only, he did within 24 hours make three distinct and separate purchases, each of one bottle of "Bitter Herb Tonic" at the price of $1.50 per bottle. The defendant admits the three separate sales, but claims that they were made in the regular course of his business as a druggist; that they were made as of a drug and not as of a beverage; that if there was any crime committed in such sales the prosecuting witness was an accomplice; that the latter's testimony is not corroborated, and for such reason the court should have directed a verdict. That is the vital issue in this case.
Section 2370, L. O. L., provides:
"All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime, or aid and abet in its commission, though not present, are principals, and to be tried and punished as such."
And section 1540 provides:
"A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime, or the circumstances of the commission."
In State v. Roberts, 15 Or. 187, 13 P. 896, quoting from Wharton's Criminal Evidence, § 440, this court said:
"An 'accomplice'...
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