127 P. 686 | Or. | 1912
delivered the opinion of the court.
The defendant, John Billups, was convicted of the crime of selling intoxicating liquors in violation of the local option law, and he appeals from the judgment rendered on the verdict.
The averment in the indictment that “ever since said June 12, 1908,” the prohibition order has been in force is an erroneous statement; but, since the defendant was charged with selling liquors after the law went into effect, to wit, on October 14, 1910, he could not have
“Said court shall, on the eleventh day after the election, or as soon thereafter as practicable, hold a special session; and if a majority of the votes hereon in the county as a whole are ‘for prohibition,’ said 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 herein, until such time as the qualified voters therein, 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 the law have been complied with in giving notice of and holding such election, and in counting and returning the votes and declaring the results thereof.” Section 4929, L. O. L.
By comparing the averment of the indictment herein-before quoted with a copy of the information set forth in the case of State v. Carmody, 50 Or. 1 (91 Pac. 446, 1081: 12 L. R. A. [N. S.] 828), it will be observed that, excepting' the date on which the respective orders of the county court were made and the territory in which they were to be in force, the language of the separate charges is identical. In the case cited, the sufficiency of the formal charge in the respect noted was upheld, and the rule thus established has been subsequently approved. State v. Runyon, 62 Or. 246 (124 Pac. 259). The indictment states facts sufficient to advise the defendant of the commission of the crime with which he was charged, and no error was committed in overruling the demurrer.
The statute adverted to, as far as material in the case at bar, reads as follows:
“Whenever a petition therefor signed by not less than ten per cent of the registered voters of any county in the State, * * shall be filed with the county clerk of such county in the manner in this act prescribed, the county court of such county shall order an election to be held at the time mentioned in such petition, * * to determine whether the sale of intoxicating liquors shall be prohibited in such county. * * In determining whether any such petition contains the requisite percentage of legal voters, said percentage shall be based on the total vote in such county * * for justice of the Supreme Court, at the last preceding general election.” Section 4920, L. O. L.
“The petition therefor shall be filed with the county clerk not less than thirty nor more than ninety days before the day of election.” Section 4922, L. O. L.
“The county clerk shall upon the receipt of such petition immediately file the same and shall thereupon compare the signatures of the electors signing the same with their signatures on the registration books of the election then pending, or if none pending, then with the signatures on the registration books and blanks on file in his office for the preceding general election.” Section 4925, L. 0. L.
“At least twenty days previous to any election hereunder the county clerk shall deliver to the sheriff of the county at least five notices of the election for each election precinct in said county voting on the question. * * It shall be the duty of the sheriff at least twelve days before any election hereunder to post said notices in pub-*284 lie places in the vicinity of the polling place or places. Thereupon the clerk and the sheriff shall each briefly enter of record their compliance with the provisions of this section, and such record shall be prima facie evidence that all the provisions of this section have been fully complied with.” Section 4926, L. O. L.
The bill of exceptions shows that on May 8 and 9, 1908, the county clerk of Crook County delivered the requisite number of election notices to the sheriff, who on the latter day posted them as required by law, but that the order calling the election was not made until May 13th of that year. The local option law does not declare when such order shall be made, nor does it provide that the calling of the election shall be a condition precedent to the issuing or posting of the election notices. The command found in Section 4920, L. O. L., that, whenever a petition therefor shall be filed with the county clerk, the county court shall order an election to be held, etc., cannot reasonably be construed to mean that the order should immediately be made upon the filing of the petition, for such an interpretation of the statute would render it necessary for the county courts constantly to be in session during the time in which a petition might be filed, or for a period of not less than 30 nor more than 90 days prior to the day of election. Section 4922, L. O. L.
The posting of election notices at least 12 days previous to the day of election is demanded by law. The statute prescribing the calling of the election does not provide that the order therefor shall be made on or before a given number of days prior to the day of election. Each legal voter in a precinct is entitled to have the requisite number of election notices posted therein, at least 12 days prior to the day of election, in order to render a majority vote in favor of prohibition valid, if a failure in this respect would probably affect the result in the entire county. Guernsey v. McHaley, 52 Or. 555 (98 Pac. 158); Roesch v. Henry, 54 Or. 230 (103 Pac. 439).
“In the matter of the vote for or against prohibition of the sale of intoxicating liquors for beverage purposes for the entire county of Crook, held June 1, 1908. Now at this time this matter coming on to be heard upon the abstract of votes cast at a general election held June 1, 1908, in said Crook County, Oregon, upon the question, 'Vote for or against prohibition of the sale of intoxicating liquors for beverage purposes for the entire county of Crook,’ and it appearing to us from said abstract of votes, and the court finds therefrom, that the result of such vote upon said question resulted as follows: For prohibition 1,140 votes; against prohibition 556 votes; majority for prohibition 584 votes for entire county of Crook. Therefore it is ordered, adjudged, and decreed that on and after July 1, 1908, in the entire county of Crook, be and it hereby is absolutely prohibited to sell, exchange, give away, or in any manner dispose of intoxicating liquors for beverage purposes within said Crook*287 County, Oregon, except as provided for by the local option laws, chapter 2, pages 41 and 50, inclusive, of the session laws of the State of Oregon for the year 1905, until such time as the qualified voters of said Crook County, at a legal election held for that purpose, by a majority vote decide otherwise.”
It is argued that the utterance thus quoted contains language not found in the order declared on in the indictment, to wit: “Except as provided for by the local option laws, chapter 2, pages 41 to 50, inclusive, of the session laws of the State of Oregon for the year 1905”— and that the order offered in evidence differs from the statutory order required in that, it omits the exception prescribed by the local option law, and inserts the phrase, “exchange, give away, or in any manner dispose of,” and “for beverage purposes.”
The local option law, when put into force in any designated territory, does not interdict the sale therein of pure alcohol for scientific or manufacturing purposes, or wines to church officials for sacramental purposes, or alcoholic stimulants as medicines, nor’is a registered pharmacist prevented from selling alcoholic liquors to another duly enrolled druggist. Section 4921, L. O. L. The exceptions thus noted, which are not adverted to in the declaration of the result of the election, do not refer to the sale of intoxicating liquors for beverage purposes, and for that reason it is contended that the order in question does not create prima facie evidence of the regularity of the proceedings specified and was improperly received in evidence.
The sale of intoxicating liquors can be prohibited only for beverage purposes, and such restriction, when duly inaugurated, continues only until regularly changed in the manner prescribed. If, therefore, in declaring the result of a majority vote “for prohibition,” a county court made an order absolutely prohibiting the sale of intoxicating liquors for all purposes, such written direc
“Said .court shall, on the eleventh day after the election, or as soon thereafter as practicable, hold a special session and if a majority of the votes hereon in the county as a whole * * are ‘for prohibition,’ said court shall immediately make an order declaring the result of said vote and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits; and the order thus made shall be held to be prima facie evidence that all the provisions of the law have been complied with in giving notice of and holding said election, and in counting and returning the votes and declaring the results thereof.”
The written declaration of the county absolutely prohibiting the sale of intoxicating liquors, pursuant to a majority vote “for prohibition,” is the order that is “thus” made and which affords prima facie evidence of a compliance with the several provisions of the specified
The testimony of the prosecuting witness is to the effect that, entering the defendant’s saloon, where was displayed a sign which announced “Near Beer Sold,” he called for beer without designating the kind of liquor desired, whereupon the defendant’s counsel requested the court to charge the jury as follows:
“In determining whether the beer mentioned in the indictment was intoxicating, you have the right to consider the fact, if such you believe to be the fact, that such beer was obtained in a 'near beer saloon.’ ”
Other errors are assigned; but, deeming them unimportant, the judgment is affirmed. Affirmed.