State v. Dobson

• Decision Date: 15 December 1925
• Citation: 241 P. 383,116 Or. 459
• Parties: STATE v. DOBSON.
• Court: Oregon Supreme Court

241 P. 383

116 Or. 459

STATE v. DOBSON.

Supreme Court of Oregon

December 15, 1925

Department 2.

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

Ace Dobson was convicted of selling intoxicating liquor, and he appeals. Affirmed.

E. O. Stadter, of Bend (Jay H. Upton, of Bend, on the brief), for appellant.

A. J Moore, of Bend, for the State.

RAND J.

The defendant was arrested and brought before a justice of the peace charged with the crime of selling intoxicating liquor and was tried and convicted. He appealed to the circuit court and was again convicted. This appeal is from the judgment of conviction in the circuit court.

His first contention is that the complaint, upon which the warrant was issued by the justice's court, failed to state the commission of a crime in that in charging the offense the complaint charged that the defendant "did then and there sell intoxicating liquor against the peace and dignity, * * *" etc., without there having been inserted before the word "sell" the word "unlawfully." In this state any sale of intoxicating liquor is unlawful, unless the intoxicating liquor is ethyl alcohol, and the sale of ethyl alcohol is unlawful unless made pursuant to the provisions of sections 2224--6, 2224--7, Or. L., and section 2224--10, Or L., as amended by chapter 405, L. 1921. The provisions just referred to apply only to the sale of ethyl alcohol by and to the persons specifically described and for the purposes particularly enumerated in the statute, and then only upon a permit being issued by the district attorney of the district in which the sale is made. That the defendant was not one of the persons enumerated, or that the transaction complained of did not come within the exceptions of the statute, was not a fact which the state was bound to negative, either by using the word "unlawfully" or by any specific allegation of the fact itself.

It is settled law in this state that exceptions in a statute need not be negatived in an indictment or information charging an offense under the statute when they afford matters of excuse only and do not define or qualify the offense. In State v. Tamler, 19 Or. 528, 25 P. 71, 9 L. R. A. 853, this court said:

"The exceptions should be negatived only when they are descriptive of the offense, or a necessary ingredient of its definitions; but when they afford matter of excuse merely they are matters of defense and therefore need not be negatived in the indictment."

The doctrine there announced has been followed in every decision since rendered by this court upon that question. See State v. Carmody, 50 Or. 1, 91 P. 446, 1081, 12 L R. A. (N. S.) 828; State v. Sommer, 71 Or. 206, 142 P. 759; City of Astoria v. Malone, 87 Or. 88, 169 P. 749, and cases there cited; State v. Rosasco, 103 Or. 343, 205 P. 290; State v. He Quan Chan, 113 Or. 168, 232 P. 619.

Defendant relies upon the case of City of Astoria v. Malone, supra, to take this case out of the rule referred to. In that case the court cited with approval from 12 Stand. Ency. Proced. 408, as follows:

"When the statute creating an offense makes certain acts criminal when 'unlawfully' done, an indictment or information therefor must allege the acts charged were done 'unlawfully' or use words of equivalent meaning and import."

And also from 2 Bishop's New Crim. Proced. § 503, as follows:

"But if a statute, in describing the offense which it creates, uses the word, 'unlawfully' the indictment founded on the act will be bad if it be omitted; and it is generally best to resort to it, especially as it precludes all legal cause of excuse for the crime."

Here no sale of intoxicating liquor could be lawfully made unless the defendant was one of those enumerated by the statute. If he was such person, that was a matter of excuse only and not descriptive of the offense. Not being such person, it was not necessary for the information to allege both the acts constituting the sale and that the sale was unlawful. The information, therefore, was sufficient without in any way...