State v. Carmody

91 P. 446, 50 Or. 1, 1907 Ore. LEXIS 168

• Court: Oregon Supreme Court
• Decided: August 20, 1907
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Bean.

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 have been complied with in giving notice of and holding such election, and in counting and returning the votes and declaring the result thereof.” The plain purpose of this provision is to make the order of the county court prima fade evidence of the legality of all previous proceedings in the matter of the election. It is therefore unnecessary, in a prosecution for a violation of the act, for the state to allege or prove that a valid election was held, or that a majority of the voters in the county, subdivision or precinct, as the case may be, was in favor of prohibition. The order of the county court is prima facie evidence of these facts, and the production of such an order is all that is required by the state to make out its case. It is thereafter open to the defense to overcome such pHma fade case by proving that the essential steps provided by the statute were not taken. This is the interpretation given a similar provision in a local option law by the courts of Missouri and Michigan: State v. Searcy, 46 Mo. App. 421: 111 Mo. 236: 20 S. W. 186; People v. Whitney, 105 Mich. 622 (63 N. W. 765).

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 that the particular liquor so described is nonalcoholic”: Black, Intoxicating Liquors, § 17. Mr. McClain is of the same opinion (2 McClain, § 1220), and so are the editors of the Am. & Eng. Enc. of. Law (volume 17, p. 201). The adjudications on both sides of this question are collated and cited by these authors, and it is sufficient, to say we concur in the views expressed by them.

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 that to a limited extent there are other kinds of beer, or of liquor called ‘beer,’ such as ‘small beer,’ ‘spruce beer,’ ‘ginger beer,’ etc.; but such definitions are placed as remote and special, and not primary or general.

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 guilty as charged in the indictment, was but stating a rule of statutory law, and was not error: B. & C. Comp. § 2153.

Decided 22 October, 1907. 91 Pac. 1081.

The judgment is affirmed. Affirmed.