State v. Yarde

• Decision Date: 05 April 1927
• Citation: 254 P. 798,121 Or. 297
• Parties: STATE v. YARDE.
• Court: Oregon Supreme Court

254 P. 798

121 Or. 297

STATE v. YARDE.

Supreme Court of Oregon

April 5, 1927

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

James Yarde was indicted for selling intoxicating liquor, for unlawful possession of mash, wort, and wash, fit for distillation, and for unlawful operation of a distillery. Verdict of acquittal was directed, and the State appeals. Appeal dismissed.

E. B Tongue, Dist. Atty., of Hillsboro (Paul L. Patterson, of Hillsboro, on the brief), for the State.

R. F Peters, of Hillsboro (Hare, McAlear & Peters, of Hillsboro on the brief), for respondent.

BROWN, J.

Albert McFarland was an agent appointed by the prohibition commissioner under the provisions of chapter 228, General Laws of Oregon 1925. That act confers upon the commissioner and all agents appointed thereunder the authority of peace officers within the state of Oregon, and imposes upon them the duty "to diligently enforce the laws of this state having to do with the prohibition of the liquor traffic." James Yarde, defendant herein, occupied a dwelling house on a small tract of land in Washington county Or., about 15 miles distant from Portland. On the evening of November 18, 1925, the agent, having previously obtained information that a still was being operated in the basement of the defendant's dwelling, and that liquor was being there manufactured and sold, drove to the residence of the defendant accompanied by his informant. Being an experienced "dry" officer, and possessing a well-developed sense of smell, the agent detected the odor of mash on approaching the dwelling. The door was opened by a little child of the defendant about 11 years of age, who informed him that her father was in Portland. Guided by the sense of smell, he entered the basement of the house, where he found a still, and about 100 gallons of mash. He failed to seize either the mash or the still, but left the premises, and returned later with the sheriff. Thereupon the defendant, who had arrived in the meantime, was arrested by the officers who seized and carried away the still and destroyed the mash. Later the defendant was indicted by the grand jury of Washington county.

In the transcript before us we find three indictments: No. 1, for the selling of intoxicating liquor; No. 2, for the unlawful possession of mash, wort and wash, fit for distillation; No. 3, for the unlawful operation of a distillery for the purpose of manufacturing intoxicating liquor for beverage purposes.

The defendant was tried upon the indictment charging him with the unlawful possession of mash, wort, and wash, and was acquitted by direction of the court. This indictment was drafted under the provisions of chapter 30, General Laws of Oregon 1923, which, with certain exceptions, makes the possession of any mash, wort, or wash, fit for distillation, a felony. The act prohibits the operation of any distillery for the purpose of manufacturing intoxicating liquor for beverage purposes, and denounces as a felony the violation of such prohibition. Under the act, any still possessed in violation thereof, and any mash, wort, or wash, fit for distillation, are declared to be nuisances and subject to seizure when found by any officer "charged with the enforcement of the law." Section 10 of the act further provides, among other things:

"Such officer shall destroy all such mash, wort, wash, materials and products, except such as he shall deem necessary to preserve as evidence, and shall seize, remove, and retain in his possession all such stills * * * and other appliances, and shall make return of such seizure to any magistrate within whose territorial jurisdiction such seizure has been made. The officer making the seizure shall safely keep the seized property until the hearing and dispose of the same in accordance with the order of the court then made. * * * The court to which said return is made shall have jurisdiction to try the question as to whether said seized property was, at the time of said seizure, being kept or used in violation of this act."

At the conclusion of the case made by the state, the court instructed the jury as follows:

"Ladies and gentlemen of the jury, this is a case in which an application has been previously made to suppress testimony obtained by reason of an illegal search and seizure. Upon that application the court rules that the search was illegal, and therefore that the evidence obtained by reason thereof could not be used in the trial of the case. The proceeding had is more for the purpose of making a record so that the state may take advantage of an appeal if it desires. There being no evidence for you to determine in this case, it being all suppressed, there can be but one verdict, and that is of not guilty, and the court is directing a verdict of not guilty in favor of the defendant."

The state asserts that the court erred in sustaining the defendant's application for suppression of the testimony and in sustaining his objection to the introduction of evidence relating to the still and mash.

In the cause at issue, at the time of the officer's entry into the basement of the Yarde dwelling house, he knew, or had good reason to know, that a felony was being committed therein. While the defendant was not personally present, his handiwork was much in evidence. Under the statute, the distillery was deemed to be his and in his possession. His mash was industriously at work producing intoxicating liquor. This being established, it is essential to keep in mind that the possession of mash, as alleged in the indictment constitutes a felony; that the possession and operation of an unregistered still is denounced as...