State v. Newlin

• Decision Date: 17 June 1919
• Citation: 92 Or. 589,182 P. 133
• Parties: STATE v. NEWLIN.
• Court: Oregon Supreme Court

182 P. 133

92 Or. 589

STATE v. NEWLIN.

Supreme Court of Oregon

June 17, 1919

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Adolph Newlin was convicted of the unlawful sale of intoxicating liquors, and he appeals. Judgment set aside, and cause remanded, with directions.

The defendant was indicted upon a charge of unlawful sale of intoxicating liquor to one Ed Johnson. Upon the trial the testimony of the state was substantially as follows: The defendant, at the time the alleged offense was committed, was engaged in conducting a drug store in La Grande, Or., known as the La Grande Pharmacy, which, in addition to carrying drugs, also dealt in candies and other articles frequently sold in such establishments.

The county officials, in the course of their investigations into alleged violations of the liquor laws, got into communication with one John E. Smith, also called Joe Smith, who had been working in connection with the Baker county officers in the detection of such offenses, and engaged him to do similar detective work in Union county.

While in La Grande for this purpose, Smith met Ed Johnson, whom he had formerly met in Pendleton, but who had recently been working with a threshing crew in Union county. Johnson invited Smith to go with him to Newlin's drug store and get a drink. They entered the store and called for drinks which were served to them from a bottle behind the prescription counter. The liquor had the color and general appearance of whisky and an intoxicating effect. Newlin remarked that it was pretty strong stuff. The price charged by Newlin was 25 cents a drink. They discussed with Newlin the question of buying four dozen pint bottles of the liquor but said they would see if they had the money to pay for it. Smith reported to the chief of police of La Grande, who furnished him with $20, which, with the money he had, made $50, sufficient to purchase 14 pints of the liquor. He then returned and found that Newlin had three candy buckets packed with the mixture. After paying $50 for a bucket containing 14 pints, he took it to his room. For the purpose of disguising the contents, some grapes and apples were placed on top of the bucket.

Late in the afternoon, about 6 p. m., Johnson went back and purchased a small candy pail of the liquor, paying therefor $21.50, was arrested while on the way to his room with it, indicted for having intoxicating liquor in his possession, pleaded guilty and was sentenced to 60 days in jail and a fine of $300 which sentence he was serving at the time of the trial of the case at bar.

It was for this sale Newlin was on trial in the instant case. The back room of his store was searched and a third candy pail packed with intoxicating liquor, was found. There was a slight flavor of sweet spirits of niter in the compound, and several jugs, which had contained that drug, were found in the back room of the drug store.

It was testified by a competent chemist that sweet spirits of niter is a highly volatile substance, which evaporates at a lower temperature than alcohol, and that, by exposing it to the air in a flat container, the niter would evaporate, leaving the alcohol constituent remaining. The theory of the state was that the alcohol in the liquor had been obtained either by this process or by some other method of distillation. All the liquor sold to Johnson or Smith, or seized by the authorities, contained about 36 per cent. of alcohol by volume.

Other witnesses testified to having bought similar liquor of defendant from time to time. Other facts appear in the opinion.

The defendant was convicted and sentenced to be confined in the county jail for a period of one year, and to pay a fine of $100; the judgment reciting that this was the second conviction under the prohibition act.

F. S. Ivanhoe and R. J. Green, both of La Grande, for appellant.

John S. Hodgin, Dist. Atty., of La Grande (George M. Brown, Atty. Gen., on the briefs), for the State.

McBRIDE, C.J. (after stating the facts as above).

In spite of technical points suggested by able and ingenious counsel for appellant, there is one fact established beyond any reasonable controversy, namely, that the evidence proved beyond a doubt, not only that the defendant was guilty in the present instance, but also that he was a frequent and persistent violator of the law, practically conducting a saloon for the sale of intoxicants under the guise of a drug store. Admitting that the principal witness for the prosecution is a man of bad reputation, and that the person to whom defendant sold the liquor is of doubtful character, no sane, fair juryman could have listened to the testimony adduced and thereafter have entertained the least doubt as to the guilt of the defendant. And perhaps we could stop at this, so far as the principal contention is concerned, and base our decision upon section 3 of article 7 of our amended Constitution; but, in deference to the able argument of counsel for the defense, we will consider briefly the objections urged by them.

Much is made of the refusal of the court to allow evidence to be introduced that the witness Smith had, himself, been a ...