State v. Isley

¶1delivered the opinion of the court.

¶2The defendant, J. W. Isley, was convicted of the crime of unlawfully selling intoxicating liquor, alleged to have been committed in Wallowa County July 4, 1911. He appeals from the judgment rendered against him, contending that an error was committed in overruling a demurrer to the indictment, interposed on the ground, inter alia, that the facts alleged therein were insufficient to constitute the commission of a crime. The material parts of the accusation are substantially the same as in the indictment in the case of State v. Runyon, 62 Or, 246 (123 Pac. 259), and no error was committed in that respect.

¶3The orders of the county court of that county, declaring the result of an election to have been in favor of prohibiting the sale of intoxicating liquors in the county as a whole, and absolutely prohibiting such sales, except for the purposes and under the regulations specified by law, were received in evidence over objection and exception, and it is maintained that errors were thereby committed. The admission of this evidence is complained of on the ground that the indictment was insufficient, Out, having determined that the accusation stated facts adequate to constitute the commission of the crime charged, uo error was committed as alleged.

¶41. It is insisted that the testimony received was not sufficient to substantiate the charge, and, such being the case, an error was committed in denying the request of defendant’s counsel to instruct the jury to return a verdict of not guilty. Charles Hug, a witness for the State, testified that he saw the defendant sell to Fred Savage, the person named in the indictment as the purchaser, a bottle of liquid; that the witness drank a part of the con*243tents of the bottle, and from the taste and effect thereof he recognized the fluid to be real beer; and that he had for several years been accustomed to drinking such liquor.

¶5Fred Savage testified that, when he purchased the liquid, he did not remember of having seen the defendant at the place where the sale was effected; that he did not recollect that the substance which he bought and a part of which he drank had any stimulating effect; that he had no doubt, however, that it was just straight beer; that, if it had been imbibed before partaking of a repast, it might have affected him; that he had eaten two meals before drinking the liquid; and that he considered the beverage was beer.

¶6If this testimony was believed by the jury, as it undoubtedly was,' as is evidenced by their verdict, it was sufficient to establish the fact that the sale was made by the defendant and that the liquor disposed of was intoxicating. No error was committed in this respect.

¶72. The State, over objection and exception, was permitted to offer in evidence a duly authenticated copy of a judgment of the circuit court of the State of Oregon for Wallowa County to the effect that the defendant herein had entered a plea of guilty to an indictment charging him with an unlawful sale of intoxicating liquor in that county, whereupon he was sentenced. Based on such evidence the court charged the jury as follows:

“That you can only consider this judgment for the purpose of determining the credit to be given to the testimony of the defendant. You cannot consider this record as a circumstance from which you might infer the guilt of the defendant, J. W. Isley.”

¶8To the giving of this part of the charge an exception was taken, and it is maintained that errors were thereby committed. The defendant having appeared as a witness in his own behalf, it was competent for the purpose of impeaching him to show by the record of the judgment *244that he had been convicted of a crime. Section 863, L. O. L. The copy of the judgment was admissible in evidence, and no error was committed in charging the jury that such record might be considered in determining the weight to be given to the defendant’s testimony. State v. Reynor, 50 Or. 224 (91 Pac. 301) ; State v. Deal, 52 Or. 568 (98 Pac. 165). .

¶9Other alleged errors are assigned, but, considering them unimportant, the judgment should be affirmed, and it is so ordered. ' Affirmed : Rehearing Denied.

¶10Decided July 16, 1912.