256 P. 387 | Or. | 1927
On the fourteenth day of September, 1926, the appellant was tried and convicted in the Circuit Court for Curry County upon an indictment charging him *569 with the crime of unlawfully possessing intoxicating liquor on the eleventh day of September, 1926. From a judgment and sentence based upon the conviction, he appeals. AFFIRMED. It was brought out upon examination, during the trial, that the defendant had been arrested on or about the twelfth day of August, 1926, for selling intoxicating liquor to Ed Porterfield and John Cox, and it appeared upon the trial in that case that the liquor alleged to have been possessed and sold to Porterfield and Cox was the identical liquor for the possession of which the defendant was indicted in the present action. It is claimed here, and was so urged upon the trial, that the alleged conviction of the defendant on the charge of selling intoxicating liquor to Porterfield and Cox is a bar to the present action, although no former plea of former jeopardy or former conviction was entered. It is contended here that the statement, made by counsel upon and during the trial after several witnesses on behalf of the state had testified, amounts to a plea of former jeopardy.
The statute provides, among other things, that after defendant's right to move to set aside the indictment, and his demurrer, if any is offered, has been overruled, he may enter a plea of guilty or not guilty, or of former conviction or acquittal; and the *570 statute provides the form in which such plea shall be entered in the journal. The form provided is as follows:
"The defendant pleads that he has already been convicted (or acquitted as the case may be) of the crime charged in this indictment, by the judgment of the court of ____ (naming it), rendered at ____ (naming the place), on the ____ day of ____, 19__."
The law requires the plea to be oral and entered on the journal substantially in the form above quoted.
The nearest that the defendant came to entering this plea is the statement of his counsel during the trial, which is as follows:
"I contend, so that it may appear of record, this is the first time we have been able to ascertain that this was the same facts upon which they base these offenses, and we will and do at this time, as soon as we are able to, enter a plea of former jeopardy on the facts, which would prevent a prosecution for this offense at this time."
The above statement seems to us to be far from the requirements of the Code in that it does not give the name of the court in which the former case was tried, the date of the trial, or indicate that any judgment was ever rendered by the justice before whom it was alleged to have been had. For this reason, we do not consider that any plea of former jeopardy, sufficient to meet the requirements, either of the statute or of common law, was made in this case, and if it were, upon the facts which cropped out in the course of the trial, we do not think it would be available. Defendant proceeds upon the theory that the possession of the liquor by the defendant was a constituent element in the sale of it to Porterfield and Cox, which is not necessarily the case. If the defendant had been in the possession of the liquor and had never sold it or delivered it to *571 anybody, the complete crime of possession would have been committed. Subdivision 4 of Section 2224, Or. L., provides, among other things, the following:
"It shall be unlawful for any person to receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this state," etc.
All these provisions are not part of a single crime, but each expresses a distinct crime and, therefore, while selling is one crime, possession is another and a distinct crime, and is entirely complete in itself whether the liquor so possessed is sold or retained by the possessor. It is competent for a person by one act to commit two crimes: State v. Stewart,
AFFIRMED.
BURNETT, C.J., and RAND and COSHOW, JJ., concur. *574