State v. Byam

32 P. 623, 23 Or. 568, 1893 Ore. LEXIS 64

• Court: Oregon Supreme Court
• Decided: March 20, 1893
• Status: Published

Opinion

Bean, J.

(after stating the facts). — The mere statement of Lewis’ testimony is sufficient to show its manifest incompetency. He does not know, or pretend to know, anything about the title to the land, except what Brown told him, and what information he received from looking at the supposed records.

* 1. That the contents of a public record cannot be proven by parol is so elementax-y that it would be useless. to cite any authorities in support of the principle; and, if it be conceded that in cases of this character, where the records are not within the jurisdiction of the court, the evidence of a witness skilled in the examination of records and in searching titles is competent to prove that the name of a certain person does not appear upon the record of titles as the owner of property (Burton v. Driggs, 20 Wall. 125; 1 Greenl Ev. § 93), the testimony of Lewis does not come within the rule, because it does not appear that he is skilled in such matters, or that the record he claims to have examined was in fact the record of titles for Du Page County, or the official record of the titles to property in Wheaton Heights. It seems to us, therefore, that there is a total failure of evidence tending to prove one of the material allegations of the indictment.

2. We are unable to agree with counsel for the state that this is a case in which the burden of proof rests upon the defendant to show that he did actually have title to the property conveyed by him. In all criminal cases the law requires the prosecution to prove every material allegation of the indictment by competent evidence: 1 Bishop, Crim. Proc. § 1056. It has been held, it is true, in prosecutions for selling liquor without a license, that the defendant must show that he was authorized to make the sale. But this is an apparent, rather than an actual, exception to the rule, founded on necessity and grounds of public policy. It proceeds upon the theory that, all sales of liquor being prohibited, except licensed sales, when a sale is shown, the presumption prima facie is that it is unlawful, and this presumption makes out a case for the state unless it is overcome by proof of license: Bishop, Stat. Crim § 1051; State v. Schmail, 25 Minn. 370. But, conceding that this rule applies in prosecutions for selling liquor without a license, no such presumption can attach in the case of an execution of a conveyance of real property. It is not prohibited by law, nor is it prima facie unlawful, but the presumption is that every conveyance of real estate is lawful, and before a conviction can be had in such case the prosecution must prove, by competent evidence, every material ingredient of the statutory crime, among which is the want of title in the defendant to the property conveyed. There being no such proof in this case, the court should have directed a verdict of acquittal, and for a failure to do so, the judgment must be reversed and the cause remanded.