Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-01

] Ine manner OF thus stating the
facts constituting the offense was ap-
proved in Mcmillan V. State, IS Tex.
App. 975. In Dixon V. State, 21 Tex
App. 517. 518, however, il was held
that an indictment or information to
be sufficient to charge a violation OF
the local option law, should allege the
name of the person to whom the liquor
was unlawfully sold, or If his name
was unknown to the grand jury that
fact should be averred. In referring
to the preceding decision, it is said /:
The indictments in those cases were
excepted to upon numerous other
/ grounds, and were held sufficient with
reference to such exceptions, but can
not be considered as adjudicated on
exceptions not made, or to which the
attention of the court was not called"
To the same effect see Martin V.
State, 81 Tex. Grim. Rep. 81; Drech-
sci V. State, S5 Tex Grim Rep. $50.
In Stewart " State, 80 Tex. Grim.
Rep. 391, 1893, decided January 20,
1896, the information charged that
Stewart "on the 7th of October. 1895.
and within the following described
subdivision of Collin county. to-wit. !:
! CGiving a minute description of the
territory did then and there unlaw-
fully sell to Charley Wrenn intoxicat-
| ing liquors; the sale of intoxicating
liquors having heretofore, and being
then and there, prohibited in said sub
division under and by the laws of
said state" A motion to quash the
information on the ground that it was
insufficient having been denied a trial
was had and the accused convicted.
In reversing the judgment, It is said:
Before the local option law can be
put into operation in a given terri
tory, an election for that purpose
must be held in accordance with the
laws of this state. 1t is thus made a
part of the description and definition
Of the offense that the election declar-
ing prohibition shall have been held
in accordance with the laws of the
state Of Texas; and in order, there
fore, to convict a person of this Of
Tense, it must be alleged and proved
that the election was so held. 1t
must further be alleged that the order
was made for that purpose, and due
publication made as required by the
statute. 1t is just as essential to al
lege and prove these constituent ele-
ments of this offense as it is to allege
and prove the sale of Intoxicating
liquors"
In Hall v State, 80 S. w. III, the
court of criminal appeals of Texas ON
February "a, 1897, reaffirmed the legal
principle last adverted to and held
that an information for violating the
local option law must allege that an
election on local option was held;
that the commissioners court declared
the result; and that publication was
made to put the same in force. These
decisions have been referred to in
order to show how the local option
law of Texas was judicially construed
in that state, prior to the enactment
of substantially the same statute in
Oregon
The rule is well settled that when
a statute of another state has been
adopted in Oregon, the construction
placed upon the act by the court of
last resort of the state from which
the law was borrowed, made prior to
the enactment in this state, controls
the Interpretation herein. Putnam V.
Douglas County, Or 32S; Crawford
" Roberts, 8 Or 1924; Gerrish V. Ger
rish, Or $751; Mcintyre V. Kamm,
IL Or 259; Trabant v Rummel IA
Or. II; Barmore V. Medical Exam
iners, 21 Or. 3O1; Everding V. Nc
CHM, % Or. Is; Jenkins v Hall, 26
Or. 70,
in all criminal prosecutions, the
accused shall have the right = to
demand the nature and cause of the
accusation against him" Const Ore,
Art. |. Sec II. This guarantee of
statement of the essential facts con-
stituting the commission of a crime
is not abrogated or modified by Ar
ticle I, Sec. 8, of the organic act as
amended November s, 1910, so as to
authorize this court to enter a proper
Judgment in criminal action, for in
adopting such alteration in the fun
damental law it was evidently not
intended to abolish or dispense with
any of the necessary requirements of
an indictment State " Dougherty. 4
Ore, 200; State V. Am Sam. IA Ore.
347; State V. Lee, II Ore. 4SS; State
v Shaw, % Ore. 2S7
The purpose of granting to a party
charged with the commission of a
crime the constitutional right to de-
mand the nature and cause Of the ac-
cusation against him is very sue
cinctly stated in Norris v State, 33
Miss. 373, $40, where Mr.. Justice
Fisher, speaking for the court, SAYS:
The object is not to screen the guilty !
but to protect the innocent; and by
departing from a rule supported by |
the clearest dictates of reason. while !
1t may be true that the guilty will |
but seldom, if ever, escape punish
ment, yet it may be equally true that |
the innocent may with almost equal |
facility, in many cases, be convicted |
and unjustly suffer a punishment. de-
signed by law for criminals only"
To the same effect see People V. Ohm
stead, 80 Mich. 431, 43S
The disputable presumption that Of |
ficial duty has been regularly per-
tNA i'Vu W. " L., sec. iSJ, SUP. lO) !
is not sufficient in criminal pleading
to warrant the deduction of an infer |
ence, that an election had been held. /
from the averment that the county |
court of Union county made an order .
absolutely prohibiting the sale of in
toNicating liquors in the entire coun-
ty for an indictment must be direct
and certain in the specification of the
facts constituting the crime alleged
to have been committed and nothing
Will be SuOnlied nv intApdp,a,+ ~ !