State v. Sam
14 Or. 347
Or.
1887
Check Treatment
Strahan, J.

This appeal is from a conviction for the crime of frequenting an opium den for the purpose of smoking opium. There is no bill of exceptions, and the only question presented is as to the sufficiency of the indictment. The indictment charges that “ The said Ah Sam, Ah Sue and Ilong You, on and about the 8th day of April, 1886, in the County of Clatsop, and State of Oregon, did unlawfully and feloniously enter and frequent a certain opium den,situated on Chenamusstreet, between Main and Benton streets, in the city of Astoria, in the county and state aforesaid, for the purpose of then and there smoking ojiium.”

The main point relied upon by appellant is, that the crime of frequenting a den is not committed until the visitor resorts to the place so that you could say that he has the habit of being there. Habits are not the acts of a day. The statute defining this crime is as follows : “ It shall be unlawful for any person to frequent an opium den, for the purpose of purchasing or smoking opium, or any preparation in which opium is the principal medicinal agent.” (Special session, 1885, Sec. 4. p. 39.) And section 3 defines an opium den thus: “ Any building *348where opium is sold for the purpose of being smoked on or about the premises, or where the same is smoked, shall be considered an opium den.”

When the statute sets out what acts shall constitute the offense, it is generally sufficient in the indictment to charge the defendant with acts coming fully within th'e statutory description in the substantial words of the statute, without any further expansion of the matter. (1 Bishop’s Crim. Pro. 611; 1 Wharton’s Crim.L., Sec. 364.) This rule has its exceptions (State v. Packard, 4 Or. 157; State v. Dougherty, 4 Or. 200), but I think the case now before the court does not fall within the exceptions to the general rule.

But the appellant’s counsel insists that the indictment in effect charges that the defendant did frequent said opium den on the 8th day of April, and that the word frequent means habit, which could not be contracted in one day. If the defendant’s premises were conceded, the conclusion would not necessarily follow. It is a question of evidence and not of pleading. In cases where the offense is in its nature continuing from day to day, a particular act, so to speak—of being a common drunkard—may in law be constituted out of a series of minor acts, which minor acts may be committed on different days. There being no impossibility of law that all may really occur on one day, the allegation of a single day is sufficient; and time nob being of the essence of the offense, one of the minor and constituent acts may be proved as of one day, and another as of another day, and so on. This is the general, the sound, and the just doctrine; though, as already intimated, there are in Massachusetts peculiarities of adjudication, not according with it. (Bishop on Stat. Crimes, Sec. 979; State v. O’ Connor, 49 Me. 594.) The citations upon the hearing upon the part of appellant were mainly from the Massachusetts reports.

The object of the enactment of the statute in question was to repress a most dangerous and corrupting vice—one that strikes at the very foundations of both public health and public morals. If the statute had made a single visit to an opium den for the purpose of smoking opium punishable, there can *349bo no doubt it would have been more effectual; the frequenting would have been repressed, and it may be the vicious habit not formed. But this was addressed entirely to the wisdom of the legislature. As the statute stands, it would, undoubtedly, require more than one visit to constitute the offense; how many, this court cannot, as a matter of law, determine. Perhaps it is a mixed question of law and fact, to be determined by the jury under all the circumstances. In any event, as the indictment charges that the defendant frequented the den for a purpose made punishable by the statute, and the jury having found the defendant guilty, it is to be presumed afterverdict that the necessary facts were established by the evidence. Every intendment in such case is in favor of the verdict.

We find no error, and the judgment must be affirmed.