State v. Edlund

• Court: Oregon Supreme Court
• Writing for the Court: MOORE, C.J.
• Citation: State v. Edlund, 81 Or. 614, 160 P. 534 (Or. 1916)
• Decision Date: 24 October 1916
• Parties: STATE v. EDLUND.

160 P. 534

81 Or. 614

STATE v. EDLUND.

Supreme Court of Oregon

October 24, 1916

In bank. Appeal from Circuit Court, Coos County; J. W. Hamilton Judge.

Otto Edlund was convicted of illegally selling intoxicating liquor, and he appeals. Affirmed.

Stoll & Hodge, of Marshfield, for appellant. George M Brown, Atty. Gen., and L. A. Liljeqvist, Dist. Atty., of Marshfield, for the State.

MOORE C.J.

The defendant, Otto Edlund, was convicted of the crime of unlawfully selling intoxicating liquor in Coos county, Or and appeals from the resulting judgment, assigning as errors the action of the court in refusing to direct a verdict of not guilty, in denying requested instructions and in giving instructions. The testimony introduced by the state tends to show that on February 14, 1916, at Marshfield, Or., Mode T Burwell informed E. Edson he desired to purchase some whisky, whereupon the latter replied it could be secured from the defendant, to whom Edson introduced Burwell who told the defendant he wanted to buy a quart of whisky "in bond." Edlund replied that he did not then have any of that kind. Thereupon the three men walked along the street until they came to a building in which was an office occupied by a physician whom Burwell wished to consult with reference to an injured hand. When the men reached the entrance leading to such office Burwell gave Edson some money with which to purchase the desired liquor. Edson then accompanied the defendant to a room which he occupied in that city, where for a consideration of $1.50 he delivered to Edson a bottle of whisky. In the meantime Burwell, having seen the physician and obtained a prescription, had it filled at a drug store and, returning to the street, he met the defendant and Edson, when the latter in the presence of the defendant delivered the bottle to Burwell. The defendant then departed and Burwell and Edson went behind a building on a dock and drank from the bottle, the contents of which was intoxicating. The errors assigned may be reduced to a single inquiry, viz.: Did the transaction on the part of Burwell and Edson make them accomplices in the alleged commission of the offense so as to render the testimony of either insufficient unless corroborated as required by our statute?

The defendant denies the sale of the liquor, but admits meeting Burwell and being introduced to him as stated. It will thus be seen that the proof of the actual delivery of the alcoholic beverage by the defendant to Edson depends upon the latter's testimony. Our statute declares:

"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." L. O. L. § 2370.

Another enactment reads:

"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." L. O. L. § 1540.

"An accomplice," says a text-writer, "is a person who knowingly, voluntarily, and with common intent, with the principal offender, unites in the commission of the crime." Wharton's Crim. Ev. (10th Ed.) § 440. This definition is approved in State v. Roberts, 15 Or. 187, 197, 13 P. 896, and cited as an authority in State v. Carr, 28 Or. 389, 396, 42 P. 215. In 1 R. C. L. 156 it is said:

"Notwithstanding the frequency of its use, there would seem to be no universally accepted definition of the term 'accomplices,' and its meaning in the law of evidence cannot be said to be settled."

The term so far as involved herein may be defined as follows: An accomplice is a responsible person whose willful participation in the commission of a crime, when that fact is established by competent evidence in a court of requisite jurisdiction, renders him liable to a conviction of the offense. As tending to show that Edson was a particeps criminis in the transaction, the defendant's counsel call attention to section 7 of the Prohibition Act (Gen. Laws Or. 1915, c. 141), which is as follows:

"It shall be unlawful for any person to solicit, take or receive within this state any order for intoxicating liquor or make any contract for the sale of any intoxicating liquor, except in cases where the sale of such liquor within the state is permitted."

Reliance is also placed upon the decision rendered in the case of State v. Gear, 72 Or. 501, 143 P. 890, where an intermediary, with money furnished by a minor, having purchased from a licensed saloon keeper intoxicating liquor delivered it to the minor, and it was ruled that such intervening agent was guilty of violating section 2142, L. O. L., which declared it to be unlawful to "sell, give, or cause to be sold or given, any intoxicating liquor to any minor in this state." When that decision was given it was lawful for a person, having a license to sell in a particular place intoxicating liquor, to vend it therein to competent adults. In that case the opinion states in effect that the saloon keeper did not understand...