State v. Westside Fish Co.

608 P.2d 562, 45 Or. App. 245, 1980 Ore. App. LEXIS 2308

Opinion

JOSEPH, J.

Defendant was convicted by a jury of possession by a wholesale fish dealer of fish taken for ceremonial purposes. OAR 635-41-040(3)(c).¹ Defendant contends that Westside Fish Company is merely an assumed business name, not a legal entity, and so cannot be held criminally culpable under ORS 161.095(1)² and ORS 161.015(5).³ Evidence at trial, however, disclosed that Westside Fish Company is a partnership. A partnership is a "person” within the meaning of ORS 161.015(5); therefore, it can be held criminally culpable under ORS 161.095(1).⁴

Defendant’s other assignments of error do not merit discussion.

Affirmed.

1 Formerly OAR 635-35-040; authority for the rule rests on ORS 506.036, 506.119 and 506.129; penalties are provided by ORS 506.991.

2 ORS 161.095(1):

"The minimal requirement for a criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is capable of performing.” (Emphasis supplied.)

3 ORS 161.015(5):

" 'Person’ means a human being and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.”

4 Defendant has not raised an issue about the proper way to charge partnership criminal liability.