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the attorney, as Mr. Justice Selden says, “be intoxicating liquors. The material parts of must of necessity and in reason be exempted the information are as follows: "That at from the obligation of secrecy." Rochester the general election held in the county of City Bank and Lester, Agt., v. Suydam and Marion, state of Oregon, on the 4th day of Others, 5 How. Prac. 254; Mitchell et al. v.
June, 1906, the question whether there Bromgerger, 2 Nev. 345, 90 Am. Dec. 550. should be prohibition of the sale of intoxiAlso, in a trial of a husband for homicide, it cating liquor for beverage purposes for Iloreb is competent for defendant to testify that his
precinct, Marion county, state of Oregon, was wife told him, immediately before the shoot- submitted to the legal voters of said preing, that the deceased had threatened to kill
cinct, county, and state, and then and there him. Shepherd v. Commonwealth, 85 S. W.
duly determined by a majority of the legal 191, 119 Ky. 131. And other similar cases
voters of said precinct at said election in will readily suggest themselves upon a mo
favor of prohibition, and that the sale of ment's thought.
intoxicating liquor should be prohibited in Now in this case defendant was on trial
said precinct. That thereafter, on the 15th for perjury in swearing that his wife had de
day of June, 1906, the county court of Marion serted him. The truth of this oath, or that
county, state of Oregon, duly made and enIt was honestly made, may have depended
tered of record an order declaring the relargely, if not entirely, upon the declarations
sult of said vote and absolutely prohibiting the wife made to him concerning her intention and characterizing her acts. It would
the sale of intoxicating liquors as a beverage be a bard and unjust rule to deny him the
in said Horeb precinct as a whole, and deright to protect his personal liberty, and we
claring it to be unlawful to sell, exchange, think the law does not require us to so hold,
or give away any intoxicating liquor for by giving such declarations in evidence.
beverage purposes within said Horeb preJudgment reversed, and new trial ordered.
cinct until such time as the qualified voters therein by a majority vote declared other
wise. That thereafter, to wit, on the 20 (50 Or. 1)
day of September, 1906, in the precinct of STATE v. CARMODY.*
Horeb, county of Marion, state of Oregon, (Supreme Court of Oregon. Aug. 20, 1907.) Henry Carinody, then and there being, did 1. INTOXICATING LIQUORS - LOCAL OPTION
then and there wrongfully and unlawfully PRIMA FACIE EVIDENCE.
sell and give to one Royal Sbaw and WilUnder Local Option Law (Laws 1905, p.
liam Quinn jointly six bottles of intoxicat47, c. 2), § 10, providing that the order of the county court declaring the result of an election
ing liquor, of the value of $1.50, with an inunder the act and prohibiting the sale of in- tent and purpose then and there had by him, toxicating liquors within the prescribed territory the said Henry Carmody, of evading the pro"shall be held to be prima facie evidence that all
visions of the local option law of the state the provisions of the law have been complied with in giving notice of and holding such elec of Oregon, proposed by the people of initiation, and in counting and returning the votes tive and enacted by the people of the state and declaring the result thereof,” such order is prima facie evidence of the legality of all pre
of Oregon by a majority of the votes cast vious proceedings in the matter of the election,
thereon at the general election held in said 60 that it is unnecessary, on a prosecution for state on the 6th day of June, 1904, contrary a sale in violation of the act, to allege or prøve to the provisions of said law in such cases that a valid election was held, or that a ma
made and provided, and against the peace jority of the voters was in favor of prohibition, otherwise than to allege and produce such order. and dignity of the state of Oregon.” 2. CRIMINAL LAW-EVIDENCE-BEER-INTOXI- A demurrer to the information was filed on CATING QUALITIES-JUDICIAL NOTICE.
the grounds: (1) That it does not state facts A charge of unlawfully selling intoxicating liquor is sustained by proof of sale of "beer,
sufficient to constitute a crime; (2) that it without any further description or testimony does not show any violation of the law by that it was intoxicating.
defendant; (3) that it does not show that (Ed. Note.-For_cases in point, see Cent. Dig. the question of prohibition in Horeb precinct vol. 14, Criminal Law, 8 716.)
was submitted to the legal voters of such pre8. SAME-AIDING AND A BETTING. An instruction, on a prosecution for an ille
cinct; (4) that it does not show that the gal sale of intoxicating liquors, that defendant
legal voters of such precinct determined by would be guilty if he aided or assisted B. in ef- their vote or at' all that intoxicating liquor fecting the sale in violation of law, is not error; should not be sold or given away in such preB. & C. Comp. $ 2153, declaring one who aids and abets in the commission of a crime to be a
cinct; (5) that it does not show that the principal.
county court had power or authority to make
the order of prohibition stated in the informAppeal from Circuit Court, Marion Coun
ation. This demurrer was overruled, and ty; Geo. H. Burnett, Judge.
defendant pleaded not guilty. Thereupon a Henry Carmody appeals from a conviction.
trial was had before the court and a jury. Affirmed.
The testimony for the state tended to show: On October 6, 1.906. the district attorney of That in September, 1906, two men, Shaw and the Third judicial district filed in the cir- Quinn, went to the house of defendant, in cuit court for Marion county an information the precinct of Horeb, Marion county, and charging defendant with the crime of selling | inquired if they could buy some beer fruit • For opinion on rehearing, see 91 Pac. 1081.
him. Defendant told them he had none, but not alleged in the information, nor was it
to it a particular description, or evidence that The court „nstructed the jury that, as a it was intoxicating. In a number of decimatter of judicial knowledge, beer is an in- sions it is held that the word "beer" is a toxicating liquor; that it was not necessary generic term, including both a class of alcofor the state to prove that defendant owned holic liquors and a class of nonintoxicating the beer, or was interested in the money re- beverages, such as "root beer," "ginger beer, ceived therefor; but that if the beer belong- spruce beer," and the like, and therefore it ed to Baty, and the money was received by | cannot be said in its ordinary meaning to inhim, the defendant would be guilty if he ply an intoxicating drink, unless such imaided or assişsed Baty in effecting the sale in port has been given it, either by statute or violation of law. The defendant was con- by decisions of the courts. Blatz v. Rohrbach, victed, and appeals, assigning error in over- 116 X. Y. 150, 22 N E. 1049, 6 L. R. A. 009, ruling his dernurrer to the information, in is a leading example of this class of cases. the admission of the record of the county | But Mr. Black says that this is not the apcourt prohibiting the sale of intoxicating liq- proved rule. “On the contrary, the preponuor in Horeb precinct, and in the giving and derance of authority is to the effect that refusal of the instructions referred to.
when the word beer is used, without any W. II. IIolmes, for appellant. John H.
restriction or qualitication, it denotes in inMCXary, Dist. Atty., for the State.
toxicating malt liquor'; that when thus oc
curring in in indictment or complaint, or in BEX, C. J. (after stating the facts). the evidence, it is presuned to incluile only The objection to the information, and to the that series of beverages; and thitt, being competency of the record of the county court taken in this sense, it will be suíli«ient, undeclaring the result of the election and poro- less it is shown by evidence that the particle hibiting the sale of intoxicating liquor in lar liquor so described is
described is monatlicholi.."
, Horeb pre-inct, is, in substance, that it is 1 Black on Intoxicating Liquor, $ 17. Mr. Jc
ote any other kind was
Clain is of the same opinion (2 McClain, g latter are the restricted uses of the word. 1220), and so are the editors of Am. & Eng. When asked to take a drink of milk, or a Ency. of Law (volume 17, p. 201). The adju- cup of tea, it would not be necessary to dications on both sides of this question are prove what is meant. Why is it more neccollated and cited by these authors, and it is essary to prove what is meant by a glass, or sufficient to say we concur in the views ex- drink, of beer? When beer is called for at pressed by them.
the bar, in a saloon or hotel, the bar tender The reasons which impel us to this conclu- would know at once, from the common use sion are so clearly and forcibly stated by Mr. of the word, that strong beer-a spirituous Justice Orton, in Briffitt v. State, 58 Wis. 39, or intoxicating beer—was wanted; and, if 16 N. W. 39, 46 Am. Rep. 621, that we quote any other kind was wanted, the word would from his opinion at some length: “As long be qualified, and the particular kind would as law's for licensing the sale of intoxicating be named, as root beer, or small beer, etc. liquors have existed, brandy, whisky, gin, When, therefore, the word 'beer. is used in rum, and other alcoholic liquids have been a court by a witness, the court will take juheld to be intoxicating liquors per se; and dicial notice that it means a malt and an why? Simply because it is within the com- intoxicating liquor, or such meaning will be mon knowledge and ordinary understanding a presumption of fact, and in the meaning of that they are intoxicating liquors. By this the word itself there will be prinia facie rule of common knowledge courts take ju- | proof that it is malt or intoxicating liquor dicial notice that certain things are verities, that is meant. When the witnesses in this without proof; as, in Chambers v. George, 5 case testified that the defendant sold to them Litt. [Ky.) 333, the circulating medium in beer, the prosecution had sufficiently proved popular acceptation was held to mean 'cur- that he had sold to them a malt and intoxirency of the state, and in Lampton v. Hag. | cating liquor, for both qualities are implied gard, 3 T. B. Mon. (Kr.) 149, the circulating in the word 'beer.' This, as a logical conclumedium was held to mean 'Kentucky curren- sion and principle of law, would seem to be cy,' and in Jones v. Overstreet, 4 T. B. Mon. well established by common reason, an (Ky.] 547, the word 'money' was held to mean think it would be difficult to find a single paper currency. If a witness on the stand good reason against it.” See, also, United were asked whether whisky is intoxicating, States v. Ducournau (C. C.) 54 Fed. 138. he would be apt to smile as at a joke; and 3. The instruction, that if defendant aided an intelligent witness, when asked the same and assisted Baty in committing the crime question in relation to beer, might smile with of selling intoxicating liquor he was guilty equal reason. Words in contracts and laws as charged in the indictment, was but stating are to be understood in their plain, ordinary, a rule of statutory law, and was not error. and popular sense, unless they are technical, B. & C. Comp. & 2153. local, or provincial, or their meaning is mod- Judgment affirmed. ified by the usage of trade. 1 Greenl. Ev. $ 278. When the general or primary meaning
(50 Or. 9) of a word is once established by such com
KAMM v. NORMAND et al. mon usage and general acceptation, we do
(Supreme Court of Oregon.. Aug. 20, 1907.) not require evidence of its meaning by the
1. NAVIGABLE WATERS-DAMS. testimony of witnesses, but look for its defi
While dams and embankments may be connition in the dictionary. Whisky, accord- structed in or along floatable streams to faciliing to Webster, is 'a spirit distilled from
tate their use, they may not be constructed to
the extent of injuring a riparian proprietor by grain'; and beer, according to the same au
retarding the flow of water or sending it down thority, is 'a fermented liquor made from in increased volume, to his injury or at times any malted grain, with hops and other bit- when the stream would not be otherwise naviter flavoring matter.' It is true that to a
2. SAME-FLOATAGE OF Logs. limited extent there are other kinds of beer,
In a suit to enjoin the use of a stream for or of liquor called 'beer,' such as 'small beer,' the floating of saw logs, evidence held to show 'spruce beer,' 'ginger beer,' etc.; but such def- that they could not be floated in the natural coninitions are placed as remote and special,
dition of the stream, except at extreme high wa
ter, continuing for a few hours at a time, and and not primary or general. So it may be then only small logs. said of other substances having a common 3. SAJE. name and meaning, such as milk or tea. Where a stream was such that in its natMilk, according to Webster, is 'a white fluid
ural condition saw logs could not be floated
therein, except at extreme high water, continued secreted by female mammals for the nour
for a few hours at a time, and then only small ishment of their young. There are other logs, it was not a navigable stream for the purkinds of milk, however, such as 'the white
pose of floatage. juice of plants,' which is the remote defini
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 33, Navigable Waters, $ 9.] tion, or milk in the cocoanut, or that in the Milky Way. Tea is defined to be leaves of Appeal froin Circuit Court, Clatsop Couna shrub or small tree of the genus Thea or ty; T. A. McBride, Judge. Camellia. The shrub is a native of China Suit by Joseph Kamm against Alex Vorand Japan. There are other kinds of tea, mand and others, to restrain defendants such as sage tea and camomile tea, etc. The from using a certain stream for the flowage of saw logs. From a decree in favor of adopted in this country. Rules which reason plaintiff, defendants appeal. Reversed and and convenience may have approved in refrendered.
erence to the streams of that country are This is a suit to enjoin defendants from
wholly inapplicable to our waterways, naturusing the North Fork of Klaskanie creek for
al resources, and conditions, and it is now floating saw logs. The complaint alleges
considered here that any stream which can that the stream in question runs through
be used in its natural state for commercial plaintiff's land for a distance of about one
purposes is navigable. The existence of imhalf mile, and that it is not navigable or
mense bodies of timber in Maine, Michigan, floatable for rafts, logs, lumber, or timber;
and other states, which could be transported that the defendants cut and put into the to market only by use of adjacent streams, channel above plaintiff's premises large quan- influenced the courts to early hold that any tities of saw logs, and, in order to cause
stream which is capable in its natural conthem to float down such stream, constructed dition of being commonly and generally used a splash dam, whereby a large volume of for floating saw logs at periods of high wawater was accumulated and suddenly re- ter is navigable or floatable for the transleased and permitted to flow down the stream,
portation of the timber along its banks. forcing the logs on plaintiff's land in great This doctrine has been accepted and denumbers, cutting and breaking the banks, clared by this court, and the courts of this and otherwise dainaging his premises; and country generally, until now it may be rethat, unless enjoined and restrained, de,
, garded as settled that streams, which in fendants will continue to so use the stream, their natural condition are useful for the to plaintiff's irreparable damage. Defend- transportation of saw logs during the whole ants admit, by their answer, that they are or part of each year, are highways for that engaged in the logging business on the stream purpose. Brown v. Chadbourne, 31 Me. 9, above the lands of plaintiff, and that they 1 Am. Rep. 611; Moore v. Sanborne, 2 Mich. have constructed therein a splash dam for 520, 59 Am. Dec. 209; Weise v. Smith, 3 Or. use in their logging operations. But they 445, 8 Am. Rep. 621; Shaw v. Oswego Iron allege that the stream is navigable and suit- Co., 10 Or. 371, 45 Am. Rep. 146; Haines v. able for the floatage of saw logs and other Welch et al., 14 Or. 319. 12 Pac. 502; Haines timber products where it runs through, and v. Hall, 17 Or. 165, 20 Pac. 831, 3 L. R. A. for several miles above, plaintiff's lands; 609; Nutter v. Gallagher, 19 Or. 375, 24 Pac. that they are the owners of large tracts of 230; Hallock v. Suitor, 37 Or. 9, 60 Pac. 381; valuable timber lands on the stream, and the 27 Cyc. 1566; 21 Am. & Eng. Ency. 428. But only way the timber can be marketed is by streams which are not of sufficient size and floating it down such stream; that the capacity to be profitably so used are wholly stream is not navigable at all stages of the and absolutely private. Munson v. Ilungerwater, but has well-defined banks on either ford, 6 Barb. (N. Y.) 265; Wadsworth r. side; that in October, 1903, they constructed, Smith, 11 Me. 278, 26 Am. Dec. 523. "The at great expense, about two miles above the true test, therefore to be applied in such premises of plaintiff, a splash dam for the
cases," says the Supreme Court of Maine, purpose of aiding and assisting the floatage in Brown v. Chadbourne, supra, "is whether of logs; that such dam is so constructed and a stream is inherently and in its nature capaoperated as to be a benefit to plaintiff, since ble of being used for the purposes of comit is possible thereby to control the water and merce, for the floating of vessels, boats, , prevent it from overflowing the banks or rafts or logs." It is not necessary that the reaching the height of ordinary freshets; stream should be floatable at all seasons of and that logs floated down stream by use the year. It is sufficient if it has that charof the dam do less injury to plaintiff's prem- acter at different periods, recurring with ises than if floated without such dam. Upon reasonable certainty, and continuing for a a trial the court found the averments of the sufficient length of time to make it commeranswer to be substantially true, and dis- cially profitable and beneficial to the general missed the suit, and plaintiff appeals. public. But every small creek or rivulet in J. M. Gearin and Frank J. Taylor, for ap
which logs can be made to float for a few pellants. C. E. S. Wood and G. C. Fulton, hours during a freshet is not a public highfor respondent.
way. To make a stream a highway, it must
at least be navigable or floatable in its naturBEAN, C. J. (after stating the facts). The al state, at ordinary recurring winter freshquestions for determination on this appealets, long enough to make it useful for some
(1) Whether the Klaskanie, where it purpose of trade or agriculture. People v. flows through the lands of plaintiff, is a Elk River M. & L. Co., 107 Cal. 221, 40 Pac. navigable or floatable stream; (2) to what 531, 48 Am. St. Rep. 125; Rowe et al. v. extent, if any, the defendants may render it Granite Bridge Corp. 21 Pick. (Mass.) 341; navigable or assist the navigability thereof Morgan v. King, 18 Barb. (N. Y.) 277; Id., by means of a splash dam.
35 N. Y. 454, 91 Am. Dec. 67; Banks v. FrazThe common law of England, that the only ier, 64 S. W. 983, 111 Ky. 909; Commissionstreams which are navigable are those in ers of Burke Co. v. Catawba Lumber Co. which the tide ebbs and flows, has never been et al., 115 N. C. 590, 20 S. E. 707, 817; Lewis
v. Coffee Co., 77 Ala. 190, 54 Am. Rep. 53; is such and its length and capacity so limited Ilubbard v. Bell, 51 Ill. 110, 5 Am. Rep. 38; that it will only accommodate a few persons, Carlson v. St. Louis River Dam & Improv. it cannot be considered a navigable streani Co., 73 Winn. 128, 701 X. W. 1041, 72 Am. St. for any purpose. It must be so situated as Rep. 610, 41 L. R. A. 371 note); 1 Farnham to have such length and capacity as will on Waters, 121; Gould on Waters, $S 107- enable it to accommodate the public gen109. "The true rule is.” says the Supreme | erally as a means of transportation.” Court of New York, in Morgan v. King, su- The doctrine then, which we derive from pra, "that the public have a right of way the authorities, is that a stream, to be a pulin every stream which is capable, in its lic highway for floatage, must be capable, in natural state and its ordinary volume of its natural condition and at the ordinary water, of transporting, in a condition fit
winter stages of water, of valuable public for market, the products of the forests or use, and, if not, it is private property. Ormines or of the tillage of the soil upon its
dinary stages of water or natural conditions, banks. It is not essential to the right that
within this rule, do not mean a continuous the property. to be transported should be
state of floatage or an average volume of wacarried in vessels, or in some other mode,
ter. The term has reference to the natural whereby it can be guided by the agency of
flow of the water, and is applied to the man, provided it can ordinarily be carried
stream in its natural condition, without the safely without such guidance. Nor is it
application of artificial means, and is used in necessary that the stream should be capable
contradistinction to extraordinary or unusual of being thus navigated against its current,
floods. That which occurs with reasonable as well as in the direction of its current. If
certainty, periodically, can hardly be said to it is so far navigable or floatable, in its
be unusual, and much less extraordinary, natural state and its ordinary capacity, as to
and may be properly characterized as ordibe of public use in the transportation of
nary. A stream, therefore, that is capable property, the public claim to such use ought to be liberally supported. Vor is it essential
of floating logs, unaided by artificial means,
during freshets or stages of water occurring to the easement that the capacity of the stream, as above defined, should be continu
with reasonable frequency and continuing ous or, in other words, that its ordinary
long enough to make its use of commercial state at all seasons of the year should be
value, is a public highway for that purpose. such as to make it navigable. If it is or
But a stream which is not such a highway dinarily subject to periodical fluctuations in
cannot be made one, by the use of dams or the volume and height of its water, attribu
other artificial means, without first acquiring table to natural causes, and recurring as reg
the rights of riparian proprietors. 1 Farnularly as the seasons, and if its periods of
ham on Waters, $ 139. Nor can a stream, high water or navigable capacity ordinarily
navigable in its natural condition at certain continue a sufficient length of time to make
stages of the water, be made so at other it useful as a highway, it is subject to the
times by artificial means, such as flooding and public easement. These general views are in
the like. No one has a right to store water, harmony with those maintained by the Su
and then suddenly release the accumulation, preme Court of Maine in Brown v. Chad- and thus increase the natural volume of the bourne, 31 Me. 9, 1 Am. Rep. 611, and by the stream, and overflow, injure, or wash the Supreme Court of Michigan, in Moore v. adjoining banks, or otherwise interfere with Sanborne, 1 Gibbs, 519." And this is the the rights of riparian owners. The riparian rule adopted in this state. In Weise v. proprietor is entitled to the enjoyment of the Smith, supra, it is said "that if a stream is natural flow of the stream with no burden in fact capable, in its natural condition, of or hindrance imposed by artificial means being profitably used for any kind of navi- Brewster y. Rogers Co., 169 N. Y. 73, 62 V. gation, its use is to that extent subjected to E, 161, JS L. R. A. 195; Thunder Bay River the general rules of law relating to naviga- Booming Co. v. Speechly, 31 Mich. 336, 18 Am. tion applicable to the circumstances of the Rep. 181; Witheral v. Booming Co., 69 Mich. case." And in Haines v. Welch, supra, Ur. 48, 33 X. W. 758, 13 Am. St. Rep. 32); KoopJustice Thayer says: "If it [Anthony creek] is man v. Blodgett, 70 Jich. 610, 38 N. W'. 619), capable of serving an important public use as 14 Am. St. Rep. 327; Matthews v. Belfast a channel for commerce. it should be consider- Mfg. Co., 3.) Wash. 602, 77 Pac. 1010; Moned publie: but if it is only a brook, although loe Will Co. v. Menzel, :)) Wash. 187, 77 Pac. it might carry down saw logs for a few days $13. 70 L. R. A. 272, 102 Am. St. Rep. 905; during a freshet, it is not, therefore, a pub- Ford Lumber Co. & Mfg. Co. v. Clark (Ky.) lic high vay." And in Haines v. IIall, supra, OS S. W. 113; Ky. Lumber Co. v. Miracle, in speaking of the same stream, the court 101 Kr. 301, 41 S. W. 27; De Camp r. Thom said: "Whether the creek in question is soll, 16 APD. Div. 328. 1 X. Y. Supp. 1114. navigable or not for the purposes for whiclı Dams, dikes, embankments, and the like the appellant used it dejiends upon its capac- may be constructed in or along floatable ity in a natural state to float logs and timber, streams to facilitate their use (Union Power and whether its use for that purpose will be (v. Lichty, 42 Or. .:), 71 Pac. 1041), but an advantage to the pulilic. If its lo aiun í bet tu ille extent of injuring the riparian pro