State v. Carmody

• Decision Date: 20 August 1907
• Citation: 91 P. 446,50 Or. 1
• Parties: STATE v. CARMODY. [*]
• Court: Oregon Supreme Court

91 P. 446

50 Or. 1

STATE v. CARMODY. ^[*]

Supreme Court of Oregon

August 20, 1907

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Henry Carmody appeals from a conviction. Affirmed.

On October 6, 1906, the district attorney of the Third judicial district filed in the circuit court for Marion county an information charging defendant with the crime of selling intoxicating liquors. The material parts of the information are as follows: "That at the general election held in the county of Marion, state of Oregon, on the 4th day of June, 1906, the question whether there should be prohibition of the sale of intoxicating liquor for beverage purposes for Horeb precinct, Marion county, state of Oregon, was submitted to the legal voters of said precinct, county, and state, and then and there duly determined by a majority of the legal voters of said precinct at said election in favor of prohibition, and that the sale of intoxicating liquor should be prohibited in said precinct. That thereafter, on the 15th day of June, 1906, the county court of Marion county, state of Oregon, duly made and entered of record an order declaring the result of said vote and absolutely prohibiting the sale of intoxicating liquors as a beverage in said Horeb precinct as a whole, and declaring it to be unlawful to sell exchange, or give away any intoxicating liquor for beverage purposes within said Horeb precinct until such time as the qualified voters therein by a majority vote declared otherwise. That thereafter, to wit, on the 2d day of September, 1906, in the precinct of Horeb, county of Marion state of Oregon, Henry Carmody, then and there being, did then and there wrongfully and unlawfully sell and give to one Royal Shaw and William Quinn jointly six bottles of intoxicating liquor, of the value of $1.50, with an intent and purpose then and there had by him, the said Henry Carmody, of evading the provisions of the local option law of the state of Oregon, proposed by the people of initiative and enacted by the people of the state of Oregon by a majority of the votes cast thereon at the general election held in said state on the 6th day of June, 1904, contrary to the provisions of said law in such cases made and provided, and against the peace and dignity of the state of Oregon."

A demurrer to the information was filed on the grounds: (1) That it does not state facts sufficient to constitute a crime; (2) that it does not show any violation of the law by defendant; (3) that it does not show that the question of prohibition in Horeb precinct was submitted to the legal voters of such precinct; (4) that it does not show that the legal voters of such precinct determined by their vote or at all that intoxicating liquor should not be sold or given away in such precinct; (5) that it does not show that the county court had power or authority to make the order of prohibition stated in the information. This demurrer was overruled, and defendant pleaded not guilty. Thereupon a trial was had before the court and a jury.

The testimony for the state tended to show: That in September 1906, two men, Shaw and Quinn, went to the house of defendant, in the precinct of Horeb, Marion county, and inquired if they could buy some beer from him. Defendant told them he had none, but could get some for them, and went away returning in a short time. That a few minutes later a man by the name of Baty brought six bottles of beer in a sack and laid them on the floor just inside of defendant's door and went away. Shaw and Quinn had no conversation with Baty about the beer, or the purchase or payment therefor. After Baty had gone they paid defendant $1.50 for the beer and took it away with them. There was no evidence adduced by the state tending to show the character of the beer, other than it was in bottles having thereon the label of the Albany Brewing Company. The defendant in his own behalf testified: That when Shaw and Quinn came to his house they asked him if he had any beer, and he answered in the negative. That thereupon they inquired of him if beer could be procured in the town, and he told them that Baty had a barrel, and they requested him to purchase some from him, as they were not acquainted with Baty. That he went to where Baty was, and told him that Shaw and Quinn wanted six bottles of beer, and soon after he returned Baty brought the beer in a gunny sack and placed it on his porch. That one of the men paid him $1.50 for the beer, and he handed the money to Baty in their presence. That he did not own the beer, and was acting merely as an accommodation to the purchasers. The state to sustain the issues on its part introduced, and there was admitted over defendant's objection, a certified copy of the order or judgment of the county court of Marion county, declaring that a majority of the votes cast in Horeb precinct, in the June election in 1906, was in favor of prohibition, and prohibiting the sale of intoxicating liquor in such precinct until the legal voters thereof should otherwise determine.

The court instructed the jury that, as a matter of judicial knowledge, beer is an intoxicating liquor; that it was not necessary for the state to prove that defendant owned the beer, or was interested in the money received therefor; but that if the beer belonged to Baty, and the money was received by him, the defendant would be guilty if he aided or assisted Baty in effecting the sale in violation of law. The defendant was convicted, and appeals, assigning error in overruling his demurrer to the information, in the admission of the record of the county court prohibiting the sale of intoxicating liquor in Horeb precinct, and in the giving and refusal of the instructions referred to.

W.H Holmes, for appellant.

John H. McNary, Dist. Atty., for the State.

BEAN, C.J. (after stating the facts).

The objection to the information, and to the competency of the record of the county court declaring the result of the election and prohibiting the sale of intoxicating liquor in Horeb precinct, is, in substance, that it is not alleged in the information, nor was it shown at the trial, that a legal and valid election to decide whether the sale of intoxicating liquor should be...