State v. Karpenter , 120 Or. 90 ( 1926 )

COSHOW, J. —

The title of the Act of 1915 begins with this clause: “Relating to Intoxicating Liquors.” This is broad enough to cover the crime of unlawful possession of intoxicating liquor. The Act of 1917 is amendatory of the other act. The contention that the title does not embrace the subject of unlawful possession is ruled to the contrary by the opinion of Mr. Justice Rand in McLaughlin v. Helgerson, 116 Or. 310, 314 et seq. (241 Pac. 50), and cases therein cited. Although involving different enactments the principle involved in that and the instant case is the same. The identical points made by the defendant in this court are there considered and determined against the contention of defendant.

The exhibits objected to consisted of a bottle' containing a small quantity of intoxicating liquor, another bottle giving off a strong whisky odor, a lot of corks of different sizes, and a pasteboard box containing a number of empty flasks found while searching the dwelling of defendant with his permission and in his presence. Finding of these articles and defendant’s wet slippers led to the discovery of the whisky cached near defendant’s dwelling. The evidence objected to was material. The exhibits were not introduced for the purpose of proving another crime but as a part of plaintiff’s case leading up to the discovery of the liquor for the possession of which defendant was arrested and convicted. The evidence objected to was damaging but is not for that reason incompetent.

Defendant requested two instructions neither of which was given by the court. At the oral argument defendant abandoned his contention as to one of said requested instructions. The other is in the following language:

“1. The uncontradicted testimony of a witness to a particular fact may not be disregarded, but should be accepted as proof of the fact. The rule, however, that uncontradicted testimony cannot be arbitrarily rejected, is subject to the fact that it is not inherently improbable. If there is anything in the testimony which makes it inherently improbable or affecting its accuracy contained in the witnesses’ own statements, or appearing from a consideration of all the surrounding circumstances, then in that case it is proper to disregard such testimony.”

For the petition, Mr. Pat H. Donegan. Contra, Mr. V. C. Cosad, District Attorney.

The first sentence in the requested instruction is contrary to law. The court gave the statutory instruction regarding the value of. the testimony of one witness. This was all defendant was entitled to under the evidence.

The objection made to the verdict was not raised to the court below and is not incorporated in the bill of exceptions. For that reason the assignment of error based upon an improper verdict is not considered. The judgment is affirmed. Affirmed.

Rand, J., absent. Burnett, J., concurs in result.