State v. Newlin , 92 Or. 597 ( 1919 )

McBRIDE, C. J.

The prosecution followed the general line adopted in State v. Newlin, ante, p. 589 (182 Pac. 133), which involved a sale of intoxicating liquors to Ed Johnson, and the rulings of the court on the questions there involved were practically the same, the new questions involved being substantially the plea of autrefois convict, and the sentence as ■for a third conviction.

1, 2. There was no evidence to justify the submission to the jury of the question of former conviction. While the matter of purchasing the liquor was discussed by the defendant in the presence of both Smith and Johnson, the sale to each was separate and complete in itself. Smith went alone and paid for his bucket of bottles with his own money and with the intention of thereby procuring evidence to convict the defendant of an unlawful sale. When he paid for the liquor and took it away the transaction was complete, and so far as he was concerned he was the sole owner of the liquor so purchased, if anyone can be said to be the owner of liquor disposed of and received under such circumstances. Johnson went later and paid $21.50 for his bucket of bottles and took it away for his own purposes, and Smith had no interest in the result of the transaction. In fact, if Smith had purchased the $50 package of liquor and paid for it and taken it away first and afterwards had returned and taken the $21.50 package and paid for it, these acts would have constituted two separate offenses.

This is a much stronger case against defendant than State v. Stewart, 11 Or. 52, 238 (4 Pac. 128), in which it was held that a person may, by one act, commit two distinct crimes, a particular instance of which is where a person by a single shot wounds or kills two people. The plea was not sustained by any evidence.

3. It is suggested in the brief that the court erred in imposing a sentence as for a third conviction. There is no allegation in the indictment that the defendant had been previously convicted of like offenses, and, as shown in the Johnson case just decided, such a sentence was not authorized in the absence of a proper allegation in the indictment: 22 Cyc. 256.

For this error the judgment of the Circuit Court is set aside and the cause remanded with directions to re-sentence defendant without regard to any previous conviction. In all other matters the proceedings of the lower court are affirmed.

Remanded With Directions.

Burnett, Benson and Harris, JJ., concur in the result.