State v. Rosasco

• Decision Date: 21 March 1922
• Citation: 103 Or. 343,205 P. 290
• Parties: STATE v. ROSASCO.
• Court: Oregon Supreme Court

205 P. 290

103 Or. 343

STATE v. ROSASCO.

Supreme Court of Oregon

March 21, 1922

Department 2.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Louis Rosasco was convicted of unlawful possession of intoxicating liquor, and appeals. Affirmed.

This is an appeal from judgment of conviction of a crime committed in violation of the Prohibition Liquor Law. The crime consisted in the unlawful possession of intoxicating liquor.

Louis Rosasco was the manager of the Columbia River Produce &amp Canning Company, and an owner of the property possessed by it. He resided on the top floor of the cannery, and had the privilege of using the basement.

The grand jury for the circuit court in and for Columbia county Or., by indictment, charged that--

"The said L. Rosasco, on the 17th day of October, A. D. 1919, in the said county of Columbia and state of Oregon, then and there being, did then and there willfully and unlawfully possess intoxicating liquor contrary to the statute. * * *"

The defendant, on being arraigned upon this charge, pleaded not guilty, and entered upon his trial.

The evidence adduced upon the trial shows that the defendant ordered three carloads of grapes in the autumn of 1919, one of which he shipped "down the river." The other two he attempted to sell at St. Helens and vicinity, but had on hand about 7 tons of grapes, which he says he could not sell. It is asserted by the prosecution that these grapes were hauled from the car to the basement of the cannery during the nighttime, and that they were thereafter manufactured into wine.

On October 17, 1919, a raid was made by the sheriff of Columbia county on the premises where the grapes were crushed and the wine stored, and 20 barrels and a few jugs and bottles were found containing wine, fermenting and fermented, together with a vat 30 inches high and 10 feet in diameter, containing grape pumice and fermenting liquid. Presses designed to press juice from grapes were also found in the basement.

The deputy sheriff testified that he took samples of the liquor to Portland for the purpose of ascertaining the alcoholic content.

"We first took 6 samples; and then the following Tuesday morning we took 31 samples, taking a sample of each container barrel, bottle, demijohn."

The samples were taken by means of a hose with which he drew the liquor from the containers into the bottles, and the samples examined were identified with the containers from which they were taken, and for the purpose of identification in evidence were marked as Exhibits 1-A to 31-A.

Albert S. Wells, chemist in the office of the Oregon Dairy and Food Commission, testified to making an analysis of Exhibits 1-A to 31-A, inclusive, for the purpose of ascertaining the alcoholic content; that when he received the samples on October 22 from Deputy Sheriff Butler, some of them were yet fermenting; that sample No. 1 showed alcohol, by volume, 4.15 per cent.; sample No. 2, 3.52 per cent.; No. 3, "I labeled it being a red wine; a very poor wine; I would say that it was about a third pressing of wine."

"Q. About a third pressing of grapes? A. Yes.

"Q. In order to save time, what do you call all this stuff? A. It is wine, most of it.

"Q No. 4? A. No. 4 is wine of the best grade; that would be what you call the first pressing. That contains alcohol by volume 14.05. * * * That is what I would call good 'Dago Red.'

"Q No. 5; what is the result of your analysis of that? A. No. 5 is one of the best grades, too, first pressing, 13.85 per cent. * * * Sample No. 6 contained an alcoholic content of 11.55.

"Q. What is the highest per cent. of alcohol by volume that grape juice can contain through natural fermentation without the addition of alcohol or sugar? A. About 14 or 15 is about as high without adding alcohol or sugar.

"Q. So that some of these contained the maximum per cent? A. All it could."

Upon analysis, five of the samples showed an alcoholic content of more than 14 per cent.; six, less than 14 and more than 13 per cent.; five, less than 13 and more than 9 per cent.; seven, less than 9 and more than 7 per cent.; and the remainder were of a lesser per cent.

At the conclusion of the state's evidence, the defendant moved for a dismissal of the case against him, upon the grounds:

"First, that the indictment did not charge a crime against the defendant; and,

"Second, on the ground that the evidence failed to support the charge set out in the indictment, and, further, did not show that at the time this product was found as alleged in defendant's possession, that it contained alcohol of more than one-half of one per cent. per volume and was intoxicating liquor.

"Third, that it was not shown by any evidence that the defendant had it unlawfully in his possession."

The court overruled the defendant's motion.

The defendant, entering upon his defense, testified to a state of facts tending to show that he was engaged in the manufacture of vinegar. He admitted that the product, which was chiefly vinous liquor, taken from him by the officers of Columbia county, was his property, but asserted that he had it in his possession for a lawful purpose, namely, for the manufacture of vinegar. He further testified that when the state went dry he owned and possessed about 6 barrels, or 300 gallons, of wine; that he had consumed all this with the exception of 72 gallons; that this remainder, at the time of the sheriff's raid, was in the basement and was taken therefrom by the sheriff; that it was in one 50-gallon barrel, one 15-gallon keg, a 10-gallon keg, and two 1-gallon jugs. His testimony was corroborated by that of his wife.

The jury, by special verdict, found that the defendant had had in his continuous lawful possession, since the state went dry, liquor contained in containers Nos. 18, 26, 27, 28, 29, and 30. This was returned to him.

The jury also returned into court a general verdict, finding the defendant guilty, as charged.

The defendant, on his appeal, avers that the court erred:

1. In denying defendant's motion to dismiss.

2. In refusing to direct a verdict of acquittal.

3. In permitting the sheriff to testify concerning other raids.

4. In refusing to instruct the jury as requested by defendant.

5. In that the defendant has been deprived of his property and liberty without due process of law, and in violation of the Constitution of the state of Oregon and of the United States of America.

T. J. Cleeton, of Portland (Cleeton & McMenamin and Delbert A. Norton, all of Portland, on the brief), for appellant.

John L. Foote, Dist. Atty., of St. Helens, for the State.

BROWN, J. (after stating the facts as above).

Neither averment nor proof of criminal intent is involved in the crime charged to have been committed by the defendant. He contends, however, that the indictment is insufficient, in that it does not charge him with having the "product in his possession for the purpose of using the same as a beverage," as defined by section 2, c. 141, General Laws of 1915, and section 2224--1, Or. L. The words "intoxicating liquor," as used in this section of our prohibitory law, embrace all

1. (a) Spirituous liquors; (b) malt liquors; (c) vinous liquors; (d) fermented or other intoxicating liquors;

2. (a) And all mixtures or preparations reasonably likely or intended to be used as a beverage, which shall contain in excess of one-half of one per centum of alcohol by volume; and

3. (a) All mixtures, compounds or preparations, whether liquid or not, which are intended, when mixed with water or otherwise, to produce, by fermentation or otherwise, an intoxicating liquor.

Section 2224--4, Or. L., provides that--

"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."

Under a proviso contained in this section, it is enacted that--

"It shall not be unlawful for any person to have in his possession intoxicating liquor lawfully procured and in the possession of such person within this state at the time of the taking effect of this amendatory act, or lawfully obtained or received under the provision of this act."

Section 2224--5 reads:

"The provisions of this act shall not be construed to prevent the making or selling of vinegar, alcohol manufactured for denaturation only and actually denaturized under the laws and regulations of the United States government, or nonintoxicating cider or fruit juices, or the making of wine for sacramental purposes."

From the provisions of section 2224--4, together with the definition of "intoxicating liquor," it will be seen that the language of the indictment states facts sufficient to constitute a crime. The indictment is for the crime of possessing vinous liquors that are deemed intoxicating liquors under the provisions of section 2224--1, Or. L. The contention of counsel relating to the word "beverage" would find some support if the liquors manufactured and possessed by the defendant were not wine, but a mere "mixture or preparation reasonably likely or intended to be used as a beverage, which shall contain in excess of one-half of one per centum of alcohol by volume." The indictment states facts that bring the act of the defendant within the prohibition of the law. The statute defining the offense charged against the defendant does not require an allegation that the liquor was either manufactured or possessed for beverage purposes, neither does it require an allegation in the indictment that the vinous product was not possessed for the purpose of manufacturing vinegar.

The defendant asserts his right to manufacture the product seized, under the exception contained in the Prohibition Law permitting the...