State v. Wilbur

• Decision Date: 10 July 1917
• Citation: 166 P. 51,85 Or. 565
• Parties: STATE v. WILBUR. [a1]
• Court: Oregon Supreme Court

166 P. 51

85 Or. 565

STATE v. WILBUR. ^[a1]

Supreme Court of Oregon

July 10, 1917

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Julius Wilbur was convicted of unlawfully selling intoxicants, and he appeals. Affirmed.

The defendant was accused by an indictment the charging part of which reads:

"The said Julius Wilbur, on the 23d day of September, A. D 1916, in the county of Clackamas and state of Oregon, then and there being did then and there unlawfully sell intoxicating liquor, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oregon."

A demurrer was interposed thereto on the ground, inter alia that the indictment did not inform the defendant of the nature and cause of the accusation against him. The demurrer was overruled, whereupon the defendant entered a plea of not guilty, and, a trial being had, he was convicted and appeals from the resulting judgment.

C. W Fulton, of Portland (Fulton & Bowerman, of Portland, on the brief), for appellant. Geo. M. Brown, Atty. Gen., and Gilbert L. Hedges, Dist. Atty., of Oregon City, for the State.

MOORE J.

Section 33 of chapter 141, Gen. Laws Or. 1915, prohibiting in Oregon the manufacture, sale, or barter of intoxicating liquors except as stated in the enactment is as follows:

"In prosecutions under this act, whether begun by indictment, complaint or information, it shall not be necessary to state the kind or quantity of liquor manufactured or sold, and it shall not be necessary to describe the place where the same was manufactured or sold, except in prosecutions for the keeping and maintaining of a common nuisance as defined by this act, or when a lien is sought to be established against the place where such liquor was illegally sold; and it shall not be necessary to state the name of the person by whom the same was manufactured or sold, nor to state the name of the person to whom the same was sold; and it shall not be necessary in the first instance, for the state to allege or prove that the party charged did not have legal authority to sell such liquor, or was not within any of the exceptions provided by this act."

It is contended by defendant's counsel that, though the indictment complies with the clause of the statute quoted, that enactment and the formal charge founded thereon violate section 11 of article 1 of the Constitution of Oregon, which declares:

"In all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation against him."

And, such being the case, an error was committed in overruling the demurrer.

In State v. Shaw, 22 Or. 287, 290, 29 P. 1028, 1029, Mr. Justice Bean, in speaking of the sufficiency of an accusation, observes:

"The indictment is in the language of the statute; and it is the settled rule in this state that in indictments for misdemeanors, created by statute, it is sufficient to charge the offense in the words of the statute, subject to the qualification that the crime must be set forth with such certainty as will apprise the accused of the offense imputed to him."

In addition to the cases cited as supporting the language thus quoted, see, also, State v. Koshland, 25 Or. 178, 35 P. 32; State v. Carmody, 50 Or. 1, 91 P. 446, 1081, 12 L. R. A. (N. S.) 828; State v. Miller, 54 Or. 381, 103 P. 519; State v. Edmunds, 55 Or. 236, 104 P. 430; State v. Billups, 63 Or. 277, 127 P. 686, 48 L. R. A. (N. S.) 308; State v. Scott, 63 Or. 444, 128 P. 441; State v. Underwood, 79 Or. 338, 155 P. 194; State v. Mishler, 81 Or. 548, 160 P. 382.

In Coleman v. State, 150 Ala. 64, 43 So. 715, it was held that a statute of Alabama authorizing the form of an indictment charging an illegal sale of intoxicating liquor and dispensing with an averment of the name of the person to whom the alleged sale was made did not violate the Constitution of that state, which granted to a defendant in a criminal action the right to be informed of the nature and cause of the accusation against him. The same conclusion was reached in the case of Jones v. State, 136 Ala. 118, 123, 34 So. 236. In People v. McBride, 234 Ill. 146, 170, 84 N.E. 865, 123 Am. St. Rep. 82, 14 Ann. Cas. 994, it was ruled that a statute of Illinois making it unnecessary to name in an information the person to whom intoxicating liquor is alleged to have been illegally sold did not violate the organic law of that state in not informing the accused of the nature of the charge against him. So, too, in State v. Schweiter, 27 Kan. 499, 511, it was decided that a statute of Kansas making it unnecessary in any prosecution for a violation of a prohibition law to state in the accusation the name of the person to whom the alcoholic beverage was sold did not violate the Bill of Rights of the Constitution of that state.

These cases proceed upon the theory that, where a criminal offense is committed against a person or his property, it is essential to the identification of the crime that the name of such person shall be given, or such property described in the formal accusation. State v. Munger, 15 Vt. 290, 293. Where, however, the offense is not directed against any particular individual, but against the community, such as the alleged illegal sale of intoxicating liquor, the Legislature may prescribe the form of indictment and dispense with the requirement to name in the accusation the person to whom the alcoholic beverage is sold. Lea v. State, 64 Miss. 201, 203, 1 So. 51.

As the general prohibition statute now in force in Oregon makes it unlawful to sell intoxicating liquor for beverage purposes, it is believed the...