State v. Broom , 121 Or. 202 ( 1927 )

ON THE MERITS. AFFIRMED. This is an appeal from a conviction in the Circuit Court of Lane County on a charge of unlawfully possessing intoxicating liquor on June 1, 1925. From the testimony appended to the bill of exceptions it seems that the defendant was at large and that the sheriff of Lane County was searching for him in an endeavor to arrest him on a bench-warrant to enforce a previous conviction of a similar crime. The sheriff and district attorney of the county had employed a detective to locate the defendant so that the sheriff could arrest him. While in Albany, in Linn County, the detective ascertained that the defendant was going to Eugene, the county seat of Lane County, in the afternoon of June 1, 1925, and preceded the defendant to Eugene. In company with his son, another man and two ladies, the defendant arrived about 8 o'clock in the evening. The detective got in touch with the defendant in Eugene and states that the two had some conversation together while sitting in the detective's car in front of an apartment house where the defendant had gone to stay for the night. When he arrived at that apartment house he put his automobile in a garage appurtenant to the house. Those who went to Eugene with him, including the two ladies and the defendant's son, testified that there was no liquor in the car at all when they arrived. The detective, however, says that after the defendant's arrival there they met in the detective's car when he called at the apartment and the defendant produced a pint flask of whisky from which they both drank; that they then went into the house and to an upper room when the defendant produced another flask of whisky and offered drinks to those present including the ladies. After waiting some time for the officers to come to arrest the defendant, the detective made an excuse to leave the house, and did so, leaving the partly consumed flask of whisky on a drain board near the defendant. In a short time the detective returned with the sheriff and several men, composing a posse, and when they entered the room, the defendant was discovered seated near the flask of whisky, which the detective says was produced by the defendant, with a partly filled glass of whisky in his hand. The sheriff arrested him, took charge of the flask of whisky, having poured the contents of the glass into it and took it away with him. His assistants outside the house, who had surrounded it to prevent the defendant's escape, found the door of the garage containing the defendant's car partly open and they examined the car and found in it three glass jugs of moonshine whisky, which they took away with them, together with the car. In brief, the detective contends that the defendant produced the small flask of whisky which they found in the apartment and the defendant contends that the detective produced it. The defendant maintains also that there was no whisky in his car when he drove it into the garage but the prosecution produces testimony that it was found in his car.

There is a very marked dispute in the testimony and in the conclusions to be drawn from it but those matters were settled by the verdict of the jury. The question is whether correct procedure was employed to arrive at that result.

The first error assigned is that the court was wrong in giving to the jury the following instruction:

"If you find from the evidence that the defendant held in his hand for the purpose of drinking it a small quantity of liquor, that, in and of itself, is not a violation of the law against possession of intoxicating liquor.

"However, you have a right to consider, if you find from the evidence in the case that the defendant, Mark Broom, at the time of his arrest in the Bailey apartments, did have a glass in his hand containing some intoxicating liquor, you would have a right to consider this evidence together with all the other evidence in the case as to whether or not the defendant did, at the time and place alleged, have the three jugs in his possession, or the bottle found in the Bailey apartments in his possession. If you find that he did, it would be your duty to convict the defendant of the crime charged."

In State v. Williams, 117 Or. 238 (243 P. 563), the court was considering the question:

"Does the mere taking of a drink of intoxicating liquor, at the invitation of a friend, constitute unlawful possession of the same within the meaning of the statute?"

It was there held that this did not of itself constitute the possession of intoxicating liquor within the meaning of Section 2224 — 4, Or. L. That, however, is not all of the question here. As directed by the court, it is the duty of the jury to consider all of the circumstances of the case and all the actions of the defendant with relation to the whisky, and it is for the jury to determine whether the acts of the defendant as disclosed by the testimony were the acts of one exercising authority over the liquor or merely one who is accepting a small part as a drink. Taken in connection with other testimony, drinking part of it might partly indicate as a matter of fact that the person drinking it was the owner of it. We cannot in common sense exclude the drinking of part of it from the consideration of the jury. It is believed that those who actually buy and pay for liquor sometimes drink it and it may be possible that such actions would constitute the only purpose of having bought it, yet it would not do to exclude such an act of ownership from the consideration of the jury on a charge of unlawful possession of intoxicating liquor. In such a case the jury is entitled to consider all of the circumstances indicating the control and consumption of the liquor.

The next assignment of error is that the court sustained "objections to questions showing that state's witness Bafford was selling and dealing in moonshine whisky for some time prior to June 1, 1925." The rule is established in Section 863, Or. L., thus:

"A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth is bad; or that his moral character is such as to render him unworthy of belief, but not by evidence of particular wrongful acts; except that it may be shown by the examination of the witness or the record of the judgment that he has been convicted of a crime."

The record does not disclose that at the trial of this action there was any effort to show that the witness Bafford had been convicted of a crime. The statute forbids an attack upon him by the evidence of particular wrongful acts otherwise than in form of a regular conviction.

Finally, it is said that the "court erred in denying defendant's motion for a new trial." It is a platitude of long standing in this state that the ruling of the Circuit Court on a motion for new trial cannot be assigned as error on appeal:State v. Foot You, 24 Or. 61 (32 P. 1031, 33 P. 537).

While this appeal from Lane County was pending in this court, it was made to appear by affidavit that the defendant had escaped from the Marion County jail in which he was then imprisoned on conviction of a similar crime in that county and was still at large. On that account the state moved to dismiss the defendant's appeal in this action. In proper cases it is competent, but not imperative, for an appellate court to refuse to hear an appeal where the defendant escapes from custody and becomes a fugitive from justice. The reason for the exercise of such authority is that the court, in its discretion, will decline to decide what may turn out in reality to be a moot case, since the defendant is not where the court may directly enforce its judgment upon him. In this instance, however, the case may properly be disposed of on the merits without reference to the motion to dismiss the appeal. Hence the motion is overruled and the judgment of the Circuit Court is affirmed. AFFIRMED.

COSHOW, RAND and McBRIDE, JJ., concur.