State v. Townsend

• Decision Date: 20 November 1911
• Citation: 60 Or. 223,118 P. 1020
• Parties: STATE v. TOWNSEND.
• Court: Oregon Supreme Court

118 P. 1020

60 Or. 223

STATE v. TOWNSEND.

Supreme Court of Oregon

November 20, 1911

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

Victor Townsend was convicted of violating the local option law, and he appeals. Reversed and remanded.

Chas. Cochran, Geo. Cochran, and C.H. Finn, for appellant.

F.S Ivanhoe and I.H. Van Winkle (A.M. Crawford, on the brief) for the State.

MOORE J.

This is an appeal by the defendant from a judgment of conviction after a trial upon a plea of not guilty to a charge which omitting the formal parts, is in the following language: "Victor Townsend, the above-named defendant, is accused by the grand jury of the county of Union and state of Oregon, in this indictment, of the crime of selling intoxicating liquors, committed as follows: That said Victor Townsend, on the 23d day of May, A.D.1910, in the county of Union and state of Oregon, did then and there wrongfully and unlawfully sell to one William Spencer one pint of intoxicating liquors, for which he then and there charged and received and accepted from him, the said William Spencer, the sum of thirty-five cents, lawful money of the United States of America, and that the sale of said intoxicating liquors was contrary to and in violation of an order of the county court of Union county, state of Oregon, duly made and entered on the 29th day of June, A.D.1908, which said order absolutely prohibited the sale of intoxicating liquors in the whole of said Union county, state of Oregon, from, on, and after the 1st day of July, A.D.1908, and which said order ever since has been and still is in full force and effect within the whole of said Union county, state of Oregon, and that the act of said defendant was and is contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."

A demurrer to the indictment, on the ground that it did not state facts sufficient to constitute a crime, was overruled and it is contended that an error was thereby committed. Our local option law (L.O.L. §§ 4920-4937), proposed by initiative petition and enacted by the voters of Oregon, June 6, 1904, though changed in some particulars to suit the title of courts and some other local conditions, was patterned after the law of Texas. Rev.Stat.Tex.1895, §§ 3384-3399. In that state the commissioners' court of each county, which tribunal appears to be equivalent to the county court in Oregon, of its own motion may, and when petitioned therefor must, order an election to be held by the qualified voters in such county, justice's precinct, or subdivision of such county, or in any town or city, to determine whether or not the sale of intoxicating liquors shall be prohibited therein. Rev.Stat.Tex.1895, § 3384. When an election has been ordered, the clerk of the commissioners' court is required to cause notices of the election to be posted. Id. § 3387. A local option election must be conducted in accordance with existing laws regulating elections, and within 10 days thereafter report of the vote must be made to the commissioners' court. Id. § 3389.

"Said court shall hold a special session on the eleventh day after the holding of said election, or as soon thereafter as practicable, for the purpose of opening the polls and counting the votes; and if a majority of the votes are 'for prohibition,' the court shall immediately make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, except for the purposes and under the regulations specified in this title, until such time as the qualified voters therein may at a legal election held for that purpose by a majority vote decide otherwise; and the order thus made shall be held to be prima facie evidence that all the provisions of 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." Id. § 3390.

"The order of court declaring the result and prohibiting the sale of such liquors shall be published for four successive weeks in some newspaper published in the county wherein such election has been held. *** If there be no newspaper published, in the county, then the county judge shall cause publication to be made by posting copies of said order at three public places within the prescribed limits for the aforesaid length of time." Id. § 3391.

"When any such election has been held and has resulted in favor of prohibition, and the aforesaid court has made the order declaring the result, and the order of prohibition, and has caused the same to be published as aforesaid, any person who shall thereafter, within the prescribed bounds of prohibition, sell, exchange or give away, with the purpose of evading the provisions of this title, any intoxicating liquors whatsoever, or in any way violate any of the provisions of this title, shall be subject to prosecution, by information or indictment, and shall be punished as prescribed in the Penal Code." Id. § 3396.

In construing these provisions in Sedberry v. State, 14 Tex.App. 233, it was held (May 23, 1883) that an indictment was sufficient, the charging part of which read as follows "One Robert Sedberry, late of said county, on the 1st day of November, 1882, and in said county and state of Texas, did then and there unlawfully sell intoxicating liquors, after the qualified voters of said Bosque county had determined, at an election held in accordance with the laws of the state of Texas, that the sale and exchange of intoxicating liquors should be prohibited in said county, and after the commissioners' court of said county had made an order prohibiting the sale of intoxicating liquors, and after said order had been published for four weeks in the Independent Blade, a newspaper published in said county, *** contrary," etc. The manner of thus stating the facts constituting the offense was approved in McMillan v. State, 18 Tex.App. 375. In Dixon v. State, 21 Tex.App. 517, 518, 1 S.W. 448, however, it was held that an indictment or information, to be sufficient to charge a violation of the local option law, should allege the name of the person to whom the liquor was unlawfully sold, or, if his name was unknown to the grand jury, that fact should be averred. In referring to the preceding decision, it is said: "The indictments in those cases were excepted to upon numerous other grounds, and were held sufficient with reference to such exceptions, but cannot be considered as adjudicated on exceptions not made, or to which the attention of the court was not called." To the same effect, see Martin v. State, 31 Tex. Cr. R. 27, 19 S.W. 434; Drechsel v. State, 35 Tex.Cr.R. 580, 34 S.W. 934. In Stewart v. State, 35 Tex.Cr.R. 391, 393, 33 S.W. 1081, decided January 29, 1896, the information charged that Stewart, "on the 7th of October, 1895, and within the following described subdivision of Collin county, to wit: [giving a minute description of the territory] did then and there unlawfully sell to Charley Wrenn intoxicating liquors; the sale of intoxicating liquors having theretofore, and being then and there, prohibited in said subdivision under and by the laws of said state." A motion to quash the information, on the ground that it was insufficient, having been denied, a trial was had, and the accused convicted. In reversing the...