State v. Gear

• Court: Oregon Supreme Court
• Writing for the Court: BURNETT, J.
• Citation: State v. Gear, 72 Or. 501, 143 P. 890 (Or. 1914)
• Decision Date: 08 September 1914
• Parties: STATE v. GEAR ET AL.

143 P. 890

72 Or. 501

STATE v. GEAR ET AL.

Supreme Court of Oregon

September 8, 1914

Department 1.

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

A. E Gear and Jesse Dalrymple were convicted of selling intoxicating liquor to a minor, and defendant Dalrymple appeals. Affirmed.

Tom T Bennett, of Marshfield, for appellant. L. A Liljeqvist, Dist. Atty., of Coquille, for respondent.

BURNETT J.

There is no material dispute about the facts involved. The defendant was a cook and waiter in a Marshfield restaurant. The minor, Carter, went there in company with other minors for a supper. At Carter's request, and with his money the defendant went out of the restaurant and into a nearby liquor saloon, not connected with the eating house, and there bought some beer, for which he paid with the money furnished by Carter. He then carried the liquor back to the restaurant and delivered it to Carter who there drank it. It does not appear that Carter knew who sold the beer to Dalrymple, nor that the saloon keeper knew or had any reason to know that the beer was intended for a minor. In short, the defendant was the only one known to either the buyer or the seller. He was a go-between.

The court refused to instruct the jury as requested by the defendant, in substance, that if he only acted as agent or messenger for Carter in procuring the liquor, the verdict must be not guilty, and that unless the saloon keeper knew or had reason to know that it was a minor who was buying the beer through Dalrymple as his agent, the seller would not be guilty, with the consequence that the defendant must be acquitted. In other words the defendant's theory was that the bartender's culpability must be first established before a verdict could be returned against Dalrymple. On the contrary, the court said to the jury:

"It is not necessary for the state to prove that the proprietors or their agents of the Blanco bar knew or had reason to know that the beer was intended for a minor."

It is stated in section 2142, L. O. L.:

"If any person shall sell, give, or cause to be sold or given, any intoxicating liquor to any minor in this state * * * such person shall be deemed guilty of a misdemeanor. * * *"

Section 2370, L. O. L., reads thus:

"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."

From the standpoint of mere statistics, it must be admitted that the greater number of precedents states the rule to be that the act of the defendant as described above does not render him amenable to the charge of selling liquor to a minor. Most of them, however, are mere dicta, and almost without exception leave out of view the principle embodied in section 2370 already quoted. Taking that section into account, the common sense application of it to the admitted facts in this instance makes it plain that the defendant was a criminal principal in a transaction whereby, for a money consideration paid by the buyer, a minor, the property in some intoxicating liquor was transferred from the seller, the saloon keeper, to the minor. In short, a sale of intoxicating liquor to a minor took place, and without the assistance rendered by the defendant to the seller the sale would not have been accomplished. Knowing the...