State v. Kline

• Decision Date: 17 December 1907
• Citation: 93 P. 237,50 Or. 426
• Parties: STATE v. KLINE et al.
• Court: Oregon Supreme Court

93 P. 237

50 Or. 426

STATE v. KLINE et al.

Supreme Court of Oregon

December 17, 1907

Appeal from Circuit Court, Benton County; L.T. Harris, Judge.

Charles M. Kline, jointly accused with another, was convicted of violating the local option law, and appeals. Affirmed.

J.R. Wyatt, for appellant.

E.R Bryson, for the State.

MOORE J.

The defendants, Charles M. Kline and Merwin McMaines, were jointly convicted in a justice's court of Benton county of the crime of selling and giving away intoxicating liquor with a purpose of evading the provisions of the local option law of Oregon, alleged to have been committed in that county August 18, 1905, by then and there unlawfully selling and giving away, with such intent, intoxicating liquor to one Thomas Bell, at which time the sale of that kind of drink had been prohibited in the entire municipality, stating when and how the interdiction was effected, and further averring that the law was then and there in full force and effect. The defendants appealed from the sentences imposed upon them to the circuit court for that county, where the cause was tried anew, and McMaines acquitted; but Kline was convicted, and, from the judgment which followed, he appeals to this court.

It is contended by his counsel that an error was committed in refusing to grant a change of venue. To secure a transfer of the cause to another county for trial, the defendant interposed a motion which states that it was based on affidavits filed therewith. A number of affidavits, newspaper clippings, and other papers were fastened together and sent up to this court, but they are not made a part of the bill of exceptions or identified in any manner by the trial judge. A motion to secure a change of venue in an action for a felony, when a transfer of the cause is objected to, raises an issue which must be determined by the court from an inspection of affidavits. B. & C. Comp. § 1250. These written declarations under oath constitute the proof, which, like all other evidence, must be incorporated in a bill of exceptions and transmitted to this court, in order that the action of the trial court may be reviewed on appeal, if assigned as error. The affidavits referred to, though certified by the clerk, do not make them a part of the bill of exceptions, and hence the question suggested, even if the crime charged were a felony, is not before us for consideration. State v. Clements, 15 Or. 237, 14 P. 410; Roberts v. Parrish, 17 Or. 583, 22 P. 136; Craft v. Dalles City, 21 Or. 53, 27 P. 163; Fisher v. Kelly, 26 Or. 249, 38 P. 67; Farrell v. Oregon Gold Co., 31 Or. 463, 49 P. 876; Nosler v. Coos Bay Navigation Co., 40 Or. 305, 63 P. 1050, 64 P. 855; Multnomah County v. Willamette Towing Co. (Or.) 89 P. 389. It is also maintained that the court erred in denying the defendants' motion to grant separate trials. When two or more persons are jointly charged with the commission of a felony, any defendant requiring it must be tried separately, but in all other cases the granting of a separate trial is a matter of discretion. B. & C. Comp. § 1395. The crime charged in the case at bar is only a misdemeanor, and as the bill of exceptions does not show that the discretion reposed in the trial court was abused, its action in refusing to grant separate trials was not erroneous.

It is insisted that the local option liquor law, the provisions of which Kline is charged with having violated, was initiated by a petition and ratified by a vote of the electors of Oregon, but the enactment was not submitted to the Governor for his approval or rejection, and for that reason it never became operative. The amendment of section 1 of article 4 of the Constitution of Oregon (B. & C. Comp. p. 72) contains the following clause: "The veto power of the Governor shall not extend to measures referred to the people." As this amendment provides that the referendum may be ordered either by petition of the electors or by the legislative assembly, it might seem reasonably to be inferred from the limitation of the Governor's authority that he could annul any measure initiated by petition. In a democratic form of government, the authority of an executive to set aside an enactment of the legislative department is not an inherent power, and can be exercised only when sanctioned by a constitutional provision. The fundamental laws of Delaware, North Carolina, Ohio, and Rhode Island do not confer the veto power on the Governors of those states. In this state, prior to the amendment referred to of the Constitution, every bill which passed the legislative assembly was required to be presented to the Governor before it became a law. Const.Or. art. 5, § 15. This provision of the organic act was impliedly changed by the amendment under consideration, so as practically to insert in the original the following parenthetic clause, to wit: "Every bill which shall have passed the legislative assembly (except such as may, by order of that body, be referred to the people for their sanction or rejection) shall, before it becomes a law, be presented to the Governor," etc. The amendment of section 1 of article 4 of our Constitution does not direct that a proposed law, when enacted by the people, pursuant to an exercise of the initiative power reserved, shall, before it becomes operative, be presented to the Governor; and hence the chief executive of this state is powerless either to approve or repudiate a measure passed in the manner indicated. The local option law of Oregon was proposed by initiative petitions, and approved by a majority vote of the electors, June 6, 1904, and took effect 18 days thereafter, conformable to the Governor's proclamation and without his approval.

It is urged that an error was committed in admitting the evidence, over objection and exception, a certified copy of the order of the county court of Benton county, declaring the result of the election, held under the local option law, and absolutely prohibiting the sale of intoxicating liquors within that municipality, without first having introduced in evidence, as a foundation for such prescription, the petition initiating the right to call the election, the notices issued in pursuance of such call, and the proof of posting the notices. A clause of the local option law relating to the action of a county court in declaring the result of an election, held to determine whether or not the sale of intoxicating liquor should be prohibited, is as follows: "The order thus made shall be held to be prima facie evidence that all the provisions of the law have been complied with in giving notice of and holding said election, and in counting and returning the votes and declaring the result thereof." Laws Or.1905, p. 47, § 10. Prima facie evidence is that degree of proof which, unexplained or uncontradicted, is alone sufficient to establish the truth of a legal principle asserted by a party. 1 Jones, Ev. § 7. The provision of the law quoted casts upon a party to a criminal action, who is charged with violating the terms of the local option enactment, the burden of overthrowing such prima facie proof, by introducing in evidence the writings which constitute the alleged irregularity of the proceedings, upon which the order of prohibition is primarily based, without which statutory declaration of the character of proof it would have been incumbent upon the state to establish the validity of the several initiatory steps necessary to the making of an efficacious order declaring the result of the election, and prohibiting the sale of intoxicating liquors in the territory specified. Strode v. Washer, 17 Or. 50, 16 P. 926; Harris v. Harsch, 29 Or. 562, 46 P. 141; Brentano v. Brentano, 41 Or. 15, 67 P. 922. The rule which imposes upon a defendant the burden of proof in a prosecution for a statutory crime does not violate any vested right which he possesses. 12 Cyc. 380. The order of the county court was admissible in evidence without introducing the petition, notices, or proof of posting such notices. State v. Carmody (Or.) 91 P. 446.

It is argued, however, that the prima facie proof mentioned was overcome by introducing in evidence the sheriff's certificate of the posting of the election notices. In the package of papers referred to upon the question of a change of venue, appears a memorandum, which has noted in the margin in lead pencil, "Defendant's Exhibit C." This exhibit purports to be the sheriff's return upon the notice mentioned, but it is not made a part of the bill of exceptions or certified to in any manner by the trial judge, and for that reason it will not be considered.

It is contended that the court erred in admitting, over objection and exception, testimony tending to prove the contents of an internal revenue license, without calling for, or producing the original or attempting to account for its absence. Secondary evidence of the contents of a writing may be given when the original is in the possession of the party against whom it is offered, and he withholds it (B. & C. Comp. § 703, subd. 1) after having received reasonable notice to produce it. Ib. § 771. The bill of exceptions shows that the license mentioned was issued by the collector of internal revenue, and having been displayed in the defendants' place of business, it was in their possession, but it does not appear that any notice to produce it had been given to them. The contents of the revenue stamp was attempted to be given by three witnesses, whose testimony was challenged by defendants' counsel on the ground that it was incompetent, immaterial, and irrelevant, and not the best evidence. It will thus be seen that the objections interposed to such testimony do not negative the implication that the defendants had received reasonable notice to...