State v. O'Donnell

• Decision Date: 22 June 1915
• Citation: State v. O'Donnell, 149 P. 536, 77 Or. 116 (Or. 1915)
• Parties: STATE v. O'DONNELL.
• Court: Oregon Supreme Court

149 P. 536

77 Or. 116

STATE v. O'DONNELL.

Supreme Court of Oregon

June 22, 1915

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Fannie O'Donnell was convicted of selling intoxicating liquor on Sunday, and she appeals. Affirmed.

The defendant was indicted for selling and disposing of intoxicating liquor on Sunday in violation of section 2129 L. O. L., as amended by Laws of 1913, c. 74. The material portion of the statute as amended provides that:

"No person shall keep open on the first day of the week commonly called Sunday, any house or room in which intoxicating liquor is kept for sale, nor shall such person sell, give or otherwise dispose of any intoxicating liquors on that day."

Having entered a plea of not guilty, the defendant was tried before a jury and convicted. The defendant appeals to this court.

Harry G. Hoy, of Marshfield (Hoy & Miller, of Marshfield, on the brief), for appellant. Geo. M. Brown, Atty. Gen. (L. A Liljeqvist, Dist. Atty., of Coquille, on the brief), for the State.

EAKIN J.

The first assignment of error is based upon the claim that the district attorney during the examination of witnesses attempted, by insinuation, to convey to the jury the impression that the defendant was a hardened criminal and a dissolute person; and an aggregate of 29 questions scattered through the transcript have been collected and printed in the brief to illustrate the contention of defendant. Twenty of the 29 questions complained of were asked and answered without any objection at all, and it is proper to add that practically all of these 20 questions were competent, and that some of them were made competent by questions asked by counsel for defendant. The remaining 9 questions were objected to, and the objections sustained by the court.

The second assignment of error relates to the overruling of an objection of the defendant to evidence tending to show that the sale was within the corporate limits of the city of Empire, the objection being grounded upon the home rule amendment of section 2 of article 11 of the Constitution as giving to the city exclusive control of all violations of the liquor law. That clause in said amendment has been construed and applied in many cases. It provides within itself that the city shall have exclusive control of the sale of liquors within its corporate limits, subject to the Constitution and criminal laws of the state of Oregon. That clause in the amendment of the Constitution has been frequently held to limit the power of the city to license and regulate the sale of liquor to cases which are not violative of the state Constitution or criminal laws of the state. Section 2129, supra, has been a criminal law of the state ever since this commonwealth was admitted to statehood, and the city has no power to ignore it. The legal question involved in this assignment of error is settled and decided in State v. Boysen, 147 P. 927.

The defendant insists that the words "nor shall such person sell" have reference only to a person who keeps a house or room in which intoxicating liquor is kept for sale. It is plain however, that "nor shall such person" relates and refers to "no person," the first two words of the statute.

Defendant excepted to the ruling of the court excluding evidence on her behalf going to the question of who was conducting the house or place wherein it was claimed the sale of liquor took place. The statute makes any one liable to the penalties therein imposed who sells or gives away such liquors, and it was not important to know who was...