State v. Tamler

• Citation: 25 P. 71,19 Or. 528
• Parties: STATE v. TAMLER et al.
• Decision Date: 10 November 1890
• Court: Oregon Supreme Court

25 P. 71

19 Or. 528

STATE v. TAMLER et al.

Supreme Court of Oregon

November 10, 1890

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

The defendants were jointly indicted, tried, and convicted of the crime of selling spirituous liquors without first having obtained a license therefor, as provided in the act of 1889. The charging part of the indictment is as follows: "M Tamler and Joseph Petty are accused by the grand jury of the county of Multnomah, state of Oregon, by this indictment of the crime of selling spirituous liquors in this state in less quantities than one gallon, without having first obtained a license from the county court of the county of Multnomah for that purpose, committed as follows: That said M. Tamler and Joseph Petty on the 5th day of July, A.D.1889, in the county of Multnomah, and state of Oregon, did unlawfully and willfully sell spirituous liquors in this state, namely whisky, in less quantities than one gallon, to-wit, about one gill of whisky, to one Timothy Maloy for ten cents, the said M. Tamler and Joseph Petty not having first then and there obtained a license from the county court of Multnomah county for that purpose, namely, for the purpose of selling that quantity of liquor, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon. Dated at Portland, in the county aforesaid this 15th day of July, 1889."

(Syllabus by the Court.)

In an indictment for selling spirituous liquor without a license, under the act of 1889, it is not necessary to allege in the indictment that such sale did not take place within an incorporated town or city.

A motion asking the court to direct an acquittal in a criminal case on account of the failure of proof on the part of the state unless such failure is a total one, must specify wherein it is claimed such proof fails.

Sears & Beach and Ed. Mendenhall, for appellants.

T.A. Stevens, Dist.Atty., for the State.

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

The bill of exceptions in this case contains several assignments of error, but, upon the argument, they were all abandoned by counsel except that the indictment does not state facts sufficient to constitute a crime, and the refusal of the court to sustain defendants' motion for a judgment in favor of the defendants on the ground of the insufficiency of the evidence to justify a verdict made at the close of the testimony of the state. The appellants contend that the indictment is insufficient, in that it does not allege that the sale therein charged was not made within an incorporated town or city. The contention is that, as section 11 of the act of 1889 provides that "nothing in this act shall be so construed as to apply in any manner to incorporated towns and cities of this state," it is necessary that the indictment should negative this section. The general rule on this subject is that where the exception or proviso is stated in the enacting clause it is necessary to negative them in order that the description of the offense may in all respects correspond with the statute, but where such exception or proviso is contained in another or subsequent section of the statute it is a matter of defense; and need not be negatived in the indictment. 1 Bish.Crim.Proc. §§ 631, 633; Mills v. Kennedy, 1 Bailey, 17. While this seems to be the general rule, there is much diversity of judicial utterances, as to the proper application, and to attempt to reconcile the authorities would be a useless, if not hopeless, task. When the exceptions or provisos are a material part of the description of the offense, it is necessary to negative them in the indictment. The indictment must contain such averments as show affirmatively an offense; and, where the exceptions or provisos are a material part of the description of the offense, the indictment must aver that the act charged does not come within the exception or proviso. The exceptions should be negatived only when they are descriptive of the offense, or a necessary ingredient of its definition; but, when they afford matter of excuse merely, they are matters of defense, and therefore need not be negatived in the indictment. The offense defined in the act of 1889 is that of selling spirituous, vinous, or malt liquors in certain prescribed quantities, without first having obtained a license in the manner prescribed by law. The provision of section 11 is no part whatever of the description of the offense, nor a necessary ingredient of its definition, but is simply a limitation in the application of the provisions of the act. The description of the offense of selling liquor without a license is full and complete without reference to the provisions of this section; and, since it forms no part of the definition thereof, it is mere matter of excuse or defense, and need not be negatived in the indictment.

As to the remaining point urged by counsel for appellants, we are of the opinion that the record before us does not properly present the same for our consideration. The record discloses the fact that, after the state had rested, "counsel for defendants moved the court for a judgment in favor of the defendants on the ground of the insufficiency of the evidence to justify the verdict." This motion being overruled, an exception was duly taken, and this ruling is now assigned as error. This motion was no doubt intended to follow the practice provided in civil cases where the plaintiff fails to prove a case sufficient to be submitted to a jury, but we have already held in State v. Jones, 18 Or. 256, 22 P. 840, that such practice is not applicable to criminal cases; but the proper practice is to ask the court to direct an acquittal. But, treating this as a motion to direct an acquittal of the defendants, we still think it is...