State v. Nodine
| Decision Date | 31 May 1927 |
| Citation | 121 Or. 567,256 P. 387 |
| Parties | STATE v. NODINE. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Curry County; John C Kendall, Judge.
Kay Nodine was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.
On the 14th day of September, 1926, the appellant was tried and convicted in the circuit court for Curry county upon an indictment charging him with the crime of unlawfully possessing intoxicating liquor on the 11th day of September 1926. From a judgment and sentence based upon the conviction he appeals.
John D. Goss, of Marshfield (Herbert Murphy and M.W Skipworth, both of Marshfield, on the brief), for appellant.
Collier H. Buffington, of Gold Beach, for the State.
It was brought out upon examination, during the trial, that the defendant had been arrested on or about the 12th day of August, 1926, for selling intoxicating liquor to Ed Porterfield and John Cox, and it appeared upon the trial in that case that the liquor alleged to have been possessed and sold to Porterfield and Cox was the identical liquor for the possession of which the defendant was indicted in the present action. It is claimed here, and was so urged upon the trial, that the alleged conviction of the defendant on the charge of selling intoxicating liquor to Porterfield and Cox is a bar to the present action, although no former plea of former jeopardy or former conviction was entered. It is contended here that the statement made by counsel upon and during the trial after several witnesses on behalf of the state had testified amounts to a plea of former jeopardy.
The statute provides, among other things, that, after defendant's right to move to set aside the indictment, and his demurrer, if any is offered, has been overruled, he may enter a plea of guilty or not guilty, or of former conviction of acquittal; and the statute provides the form in which such plea shall be entered in the journal. The form provided is as follows:
"The defendant pleads that he has already been convicted (or acquitted as the case may be) of the crime charged in this indictment, by the judgment of the court of ______ (naming it), rendered at ______ (naming the place), on the ______ day of ______, 19__."
The law requires the plea to be oral and entered on the journal substantially in the form above quoted. The nearest that the defendant came to entering this plea is the statement of his counsel during the trial, which is as follows:
"I contend, so that it may appear of record, this is the first time we have been able to ascertain that this was the same facts upon which they base these offenses, and we will and do at this time, as soon as we are able to, enter a plea of former jeopardy on the facts, which would prevent a prosecution for this offense at this time."
The above statement seems to us to be far from the requirements of the Code, in that it does not give the name of the court in which the former case was tried, the date of the trial, or indicate that any judgment was ever rendered by the justice before whom it was alleged to have been had. For this reason we do not consider that any plea of former jeopardy sufficient to meet the requirements either of the statute or of common law was made in this case, and, if it were, upon the facts which cropped out in the course of the trial, we do not think it would be available. Defendant proceeds upon the theory that the possession of the liquor by the defendant was a constituent element in the sale of it to Porterfield and Cox, which is not necessarily the case. If the defendant had been in the possession of the liquor and had never sold it or delivered it to anybody, the complete crime of possession would have been committed. Subdivision 4 of section 2224. Or.L., provides, among other things, the following:
"It shall be unlawful for any person to receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this state," etc.
All these...
To continue reading
Request your trial
-
State v. Cloutier
...intent of the legislature in enacting the statutes creating the offenses. State v. Howe, 27 Or. 138, 44 P. 672 (1895); State v. Nodine, 121 Or. 567, 256 P. 387 (1927); State v. Gerritson, 124 Or. 525, 265 P. 422 (1928). See also State v. Woolard, supra, and Gore v. United States, It follows......
-
State v. Brown
...194, 16 A.L.R. 1220 (1921); State v. Magone, 33 Or. 570, 56 P. 648 (1899); State v. Stewart, note 5, supra. See, also, State v. Nodine, 121 Or. 567, 256 P. 387 (1927) (dictum).7 State v. Newlin, 92 Or. 597, 182 P. 135 (1919); State v. McCormack, 8 Or. 236 (1880). In McCormack the court held......
-
State v. Winslow
...crimes and that in certain instances a man could be guilty of one and as a matter of law not be guilty of the other. In State v. Nodine, 121 Or. 567, 256 P. 387 (1927), the court was dealing with the act which made it a crime to possess and a crime to sell liquor. The court held that posses......
-
State v. Woolard
...intent of the legislature in enacting the statutes creating the offenses. State v. Howe, 27 Or. 138, 44 P. 672 (1895); State v. Nodine, 121 Or. 567, 256 P. 387 (1927); State v. Gerritson, 124 Or. 525, 265 P. 422 The United States Supreme Court has used this same approach and decided whether......