91 P. 446 | Or. | 1907
Lead Opinion
Opinion by
1. The objection to the information, and to the competency of the record of the county court declaring. the. result of the election and-prohibiting the sale of intoxicating liquor,.in Horeb Precinct, is, in substance, that it is not alleged .in the information, nor was it shown at the trial, that a legal, and valid election to decide whether the sale of intoxicating liquor should, be prohibited in such precinct was. ordered or held as required by law. Section 10 of the local option law (Laws..l905, p. 47, e. 2) provides that the order of the county court declaring the,result of an election held under its provisions and prohibiting the , sale of intoxicating liquor within the, prescribed territory “shall be held to be prima facie evidence that all the provisions of the. law
2. The courts are not in accord as to whether a charge of unlawfully selling intoxicating liquor is sustained by proof that the liquor sold was “beer,” without anything giving to it a particular description, or evidence that it was intoxicating. In a number of decisions it is held that the word “beer” is a generic term, including both a class of alcoholic liquors and a class of nonintoxieating beverages, such as “root beer,” “ginger beer,” “spruce beer” and the like, and therefore it cannot be said in its ordinary meaning to imply an intoxicating drink, unless such import has been given it, either by statute or by decisions of the courts. Blatz v. Rohrbach, 116 N. Y. 450 (22 N. E. 1049: 6 L. R. A. 669), is a leading example of this class of cases. But Mr. Black says that this is not the approved rule.' “On the contrary, the preponderance of authority is to the effect that when the word ‘beer’ is used, without any restriction or qualification, it denotes an intoxicating malt liquor; that when thus occurring in an indictment or complaint, or in the evidence, it is presumed to include only that species of beverages; and that, being taken in this sense, it will be sufficient, unless it is shown by evidence
The reasons which impel us to this conclusion are so clearly and forcibly stated by Mr. Justice Orton, in Briffitt v. State, 58 Wis. 39 (16 N. W. 39: 46 Am. Rep. 621), that we quote from his opinion at some length: “As long as laws for licensing the sale of intoxicating liquors have existed, brandy, whisky, gin, rum and other alcoholic liquids have been held to be intoxicating liquors per se; and why ? Simply because it is within the common knowledge and ordinary understanding that they are intoxicating liquors. By this rule of common knowledge courts take judicial notice that certain things are verities, without proof; as, in Chambers v. George, 5 Litt. (Ky.) 335, the circulating medium in popular acceptation was held to mean ‘currency of the state/ and in Lampton v. Haggard, 3 T. B. Mon. (Ky.) 149, the circulating medium was held to mean ‘Kentucky currency/ and in Jones v. Overstreet, 4 T. B. Mon. (Ky.) 547, the word ‘money’ was held to mean paper currency. If a witness on the stand were asked whether whisky is intoxicating, he would be apt to smile as at a joke; and an intelligent witness, when asked the same question'in relation to beer, might smile with equal reason. Words in contracts and laws are to be understood in their plain, ordinary and popular sense, unless they are technical, local or provincial, or their meaning is modified by the usage of trade: 1 Greenléaf, Evidence, § 278. When the general or primary meaning of a word is once established ■ by such common usage and general acceptation, we do not require evidence of its meaning by the testimony of witnesses, but look for its definition in the dictionary. Whisky, according to Webster, is ‘a spirit distilled from grain’; and beer, according to the same authority, is ‘a fermented liquor made from any malted grain, with hops and other bitter flavoring matter.’ It is true
So it may be said of other substances having a common name and meaning, such as milk or tea. Milk, according to Webster, is ‘a white fluid secreted by female mammals for the nourishment of their young.’ There are other kinds of milk, however, such as ‘the white juice of plants,’ which is the remote definition, or milk in the cocoanut, or that in the Milky Way. Tea is defined to be ‘leaves of a shrub or small tree of the genus Thea or Camellia. The shrub is a native of China and Japan.’ There are other kinds of tea, such as sage tea and camomile tea, etc. The latter are the restricted uses of the word. When asked to take a drink of milk, or a cup of tea, it would not be necessary to prove what is meant. Why is it more necessary to prove what is meant by a glass or drink of beer? When beer is called for at the bar, in a saloon or hotel, the bartender would know at once, from the common use of the word, that strong beer—a spirituous or intoxicating beer—was wanted; and, if any other kind was wanted, the word would be qualified, and the particular kind would be named, as root beer, or small beer, etc. When, therefore, the word ‘beer’ is used in a court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor, or such meaning will be a presumption of fact, and in the meaning of the word itself there will be pHma facie proof that it is malt or intoxicating liquor that is meant. When the witnesses in -this case testified that the defendant sold to-them beer, the prosecution had sufficiently proved that he had sold to them a malt and intoxicating liquor, for both qualities are implied in the word ‘beer.’ This, as a logical conclusion and principle of law, would seem to be well established by common reason, and we think it would be difficult to find a single good reason against it.” See, also, United States v. Ducournal (C. C.) 54 Fed. 138.
3. The instruction, that if defendant aided and assisted Baty in committing the crime of selling intoxicating liquor he was
The judgment is affirmed. Affirmed.
Rehearing
On Motion for Rehearing.
Opinion by
It is claimed that the indictment in this case is insufficient because it is not averred that the liquor which defendant is charged with having sold was for beverage purposes. Section 15 of the local option law (Laws 1905, p. 48) provides that when an election held under the provision of the law has resulted in favor of prohibition, and the county court has made the order declaring the result, and the order of prohibition, any person who shall thereafter, within the prescribed bounds of prohibition, sell, exchange or give away, with the purpose of evading the provisions of the law, any intoxicating liquors, shall be subject to prosecution by information or indictment, etc. This is the penal section of the law, and one defining the crime. The indictment in question follows 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: State v. Shaw, 22 Or. 287 (29 Pac. 1028).
Exceptions and provisos in a criminal statute need not be negatived in indictments unless they be descriptive of the offense or a necessary ingredient in its definition: State v. Tamler, 19 Or. 528 (9 L. R. A. 853: 25 Pac. 71). The indictment in this case conformed to the rule of law above stated, and is, therefore, sufficient.
Petition denied. Affirmed: Rehearing Denied.
