124 P. 263 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
The defendants, Xavier Michellod and S. V. Davin, having been jointly convicted of the crime of unlawfully selling intoxicating liquor in Wallowa County, appeal from the resulting judgment. The material averments of the indictment herein are essentially the same as in the case of State v. Runyon, 62 Or. 246 (124 Pac. 259),and no error was committed in overruling a deniurrer to the accusation, or in receiving in evidence orders made by the county court of that county, declaring the result of an election held therein to have been “for prohibition,” and absolutely prohibiting the sale of intoxicating liquors- in the entire county, except for the purposes and under the regulations specified in the local option , law.
A. White, the then city recorder of Joseph, was permitted,- over objection and exception, to testify that the amount demanded for conducting in that city a soft drink establishment was $100 a year; that the witness made an entry in the books of his office of the issuing of a license, based on the application and bond referred to; that no other petition or undertaking had been given for that purpose; and that the place designated in the bond was known as the “Pastime.”
It is possible that several buildings may have stood on the side of the alley referred to in the undertaking, thereby rendering the description ambiguous; and, in order particularly to identify the premises intended, testimony was admissible to show that the place where the business was conducted was also known as the “Pastime.”
The testimony in these respects was corroborated in most particulars by Michellod, who states upon oath that he did not participate in the profits and had no interest in the soft drink business. He did not state, however, that he had no knowledge that his name was subscribed by Staats to the application and the undertaking, based upon which “a license to carry on and conduct a soft drink emporium” was issued to Davin & Michellod.
The proper foundation having been laid, Byron F. Miller, the assessor of the county, testified that, prior to September 15, 1911, he visited the Pastime emporium for the purpose of listing for taxation the property kept in the building, and was informed by Staats that the stock and fixtures belonged to the Davin & Michellod Company; and that Staats was working at that place for the firm. The declarations so imputed to Staats are forgotten by him.
From a consideration of the testimony on this branch of the case, and from the circumstances adverted to, we think it cannot be said there was no competent evidence tending to support the verdict, and for that reason no error was committed in refusing to grant a new trial.
Other errors are alleged; but, deeming them unimportant, the judgment is affirmed. Affirmed.
Rehearing
On Petition for Rehearing.
[124 Pac. 657.]
delivered the opinion of the court.
In a petition for. a rehearing it is insisted that the evidence received at the trial of this case was insufficient to establish the relation of principal and agent as existing between the defendant and Charles Runyon at the time it is alleged in the indictment that intoxicating liquor was unlawfully sold. The testimony narrated in the opinion and the attending incidents adverted to therein constitute some evidence on this branch of the case. Whether or not such evidence outweighed the very strong counter-showing made by the defendant was for the jury to determine, and, they having the matter adversely to his contention, the conclusion thus reached is controlling.
From a statement in the opinion, to the effect that Michellod did not, as a witness, deny that he had knowledge that his name had been subscribed by Staats to the application for a soft drink license and to the undertaking therefor, we do not wish to be understood as intimating that such disavowal was essential, or that any failure in this respect could have been considered by the jury in a criminal action, but rather that a stronger case might possibly have been made in the defendant’s favor by doing so. But, however this may be, since there was some evidence received from which the jury might have determined that the relation of principal and agent existed, it follows that the petition should be denied; and it is so ordered.
Affirmed: Rehearing Denied.