(211 P.)

or after maturity is in effect an absolute de- | defendant is a party to it; fourth, that the defense if made to the party entitled to receive fendant has not performed his contract. The it, since there can be no new holder in due possession of the note is prima facie evidence course after maturity. But the only conclusive that it is not paid. So, too, it is of ownership, proof that a person is entitled to receive pay- even where there is no averment of ownership ment is the contemporaneous surrender of the in the complaint, and the answer does not set instrument properly indorsed, and a payment up such a defense. * * If the action be made to one who is not at the time the hold- by the payee in person, a copy of the note will, er is inoperative. On the other hand, payment in general, be sufficient, without accompanying at or after maturity to a holder is a discharge it with an averment to show the plaintiff's ownby the express words, of section 88; but the ership or interest, within the principle of Peets party paying will not be discharged if he has v. Bratt, 6 Barb. (N. Y.) 662, and James v. notice that the holder is not the person equi- Chalmers, 6 N. Y. 209; and, should the defendtably entitled to payment." 2 Williston on Con- ant wish to show in his defense that the plaintracts, p. 2168. tiff has parted with his interest in the note, he must allege such fact on his part in his answer. Possession of the note, as we have seen, raises the presumption of ownership sufficient to make out a prima facie case to sustain the action, which, however, under such a state of ex-pleadings, the defendant would be at liberty to disprove. But the case is different if the right of action has vested in, and the suit is brought by, a third person." Moak's Van Santvoord's Pleadings, § 227.

It is a general rule that a complaint must contain all the elements necessary to show a complete cause of action, and in an action to recover upon a promissory note or bill of change, it is necessary, on the face of the complaint, to show that the party bringing the suit is the lawful owner or holder of the note.

"Plaintiff's interest in the note is an essential fact to be proved, and it must be averred either expressly or by necessary implication." Moak's Van Santvoord's Pleadings (3d Ed.) § 227.

The same text-writer states that, where suit is brought directly by the payee against the maker, it is held to be unnecessary to allege that the plaintiff is the owner or party in interest; it being sufficient to say that the defendant is indebted upon the instrument and promised to pay the same to the plaintiff.

In Moss v. Cully, 1 Or. 147, 62 Am. Dec. 301, where the complaint did not allege a delivery of the note to the plaintiff, but did allege that defendant "made his promissory note in writing and thereby promised to pay to the plaintiff," etc., it was held that the allegation was sufficient to sustain a judgment in favor of plaintiff on demurrer to the complaint.

Again in Dorothy v. Pierce, 27 Or. 373, 41 Pac. 668, where the complaint did not allege that the party to whom certain county warrants had been issued was the owner and holder of the warrants, but did allege that the warrants were issued and delivered to such party, it was held upon demurrer that the complaint was sufficient.

And in Williamson v. Hurlburt, 99 Or. 336, 195 Pac. 562, where the complaint alleged the execution and delivery, for a valuable consideration, of a promissory note and a chattel mortgage given to secure the same, and it was urged that the complaint failed to state that the plaintiff was the owner and holder of the note and mortgage, it was held that as against the demurrer the complaint was sufficient.

"The plaintiff is required to prove, in a suit on a promissory note, first, the identity of the note; second, his interest in it; third, that the

[1, 2] As this action was brought by the payee against the maker of the bills of exchange and copies of the bills were set forth in the complaint, and the complaint in substance alleged that the defendant, for value, executed and delivered them to the plaintiff and thereby promised to pay plaintiff the amount thereof, this sufficiently stated plaintiff's cause of action. From these allegations it would be implied that the plaintiff was the owner and holder of them. Instead of standing upon these allegations alone, the plaintiff also alleged that it was 'the owner and holder of the bills. It thereby gave to the defendant the opportunity to raise the issue of defendant's ownership by a denial of plaintiff's allegation, and thereby relieved the defendant from any necessity of affirmatively alleging that the plaintiff was not the owner or holder of the bills. Plaintiff's ownership was a material fact which the defendant had the right to dispute, and whenever a dispute arose under the pleadings sufficient to raise this issue the plaintiff was bound to prove its ownership of the bills, either by a production of the bills themselves or by proving a sufficient legal excuse for their nonproduction. As the defendant had the right to put this question in issue and has exercised the right by a sufficient denial of plaintiff's allegation of ownership, we cannot treat plaintiff's allegation of ownership and defendant's denial thereof as surplusage.

Each party must allege "every fact which he is required to prove, and will be precluded from proving any fact not alleged and he must allege nothing affirmatively which he is not required to prove." Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 Am. St. Rep. 127.

See, also, Thompson v. Rathbun, 18 Or. 202, 22 Pac. $37, where the court said:

"Ordinarily, immaterial and nonessential allegations need not be proven, but may be en

tirely disregarded, or treated as surplusage; | than one-half of 1 per cent. of alcohol is not but it is still true that a party must prevail intoxicating. upon substantially the case made in his pleadings."

Without producing the instruments in ques- Or. L. § 2224-4 making it unlawful to postion and offering them at the trial, and with- sess intoxicating liquor, must be construed as out offering any testimony tending to show if the word "knowingly" were written into the that the bank was in possession or was en- statute, so that a person cannot be convicted titled to the possession of them, there was of being unlawfully in possession of intoxicatnothing before the court to show that plain-scious possession, and not such as would arise ing liquor unless his possession was a contiff was entitled to maintain an action there- from having it placed in his pocket or in his Production of the bills of exchange or house without his knowledge. an accounting for their absence was necessary to establish plaintiff's right of action as well as to protect the defendant from the possibility of being compelled to pay them a second time.

(Supreme Court of Oregon. Jan. 9, 1923.) 1. Criminal law 304 (20)-Court judicially knows moonshine whisky is intoxicating. Courts take judicial notice of the fact, which is within the common knowledge of all men, that moonshine whisky is intoxicating, In a prosecution for unlawfully possessing and that liquor which does not contain more intoxicating liquor, cross-examination of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(211 P.)

officer who filed the complaint against accused as to whether he had filed similar complaints against the wife of accused and a third person who claimed to own the whisky found in defendant's room was immaterial since it made no difference whether joint or separate complaints were filed against those parties and accused.

8. Witnesses

14. Intoxicating liquors 239 (2)—Instructions as to unlawful possession held correct and applicable.

In a prosecution for the unlawful possession of intoxicating liquor which was found in defendant's living room over the store owned by defendant's wife, but managed by him, where the proprietor of the butcher shop in the

396(1)-Can explain state-store had testified he bought the whisky and I placed it in defendant's room without defendments sought to be used for impeachment. Where the testimony of a witness is direct-ments of unlawful possession, as to joint posant's knowledge, instructions as to the elely attacked by an attempt to show inconsistent session, as to guilt if the butcher placed the statements, the witness must be given an op- whisky in defendant's room with defendant's portunity to explain the statements, under Or. knowledge, and as to defendant's control of Laws, § 864, expressly providing for, such op the home as head of the family held correct portunity. statements of the law applicable to the 'evidence.

9. Witnesses

396(1)-Court has discretion to permit witness to explain statement during cross-examination.

Where a witness is cross-examined as to inconsistent statements to lay a foundation for impeachment, it is within the discretion of the trial court to permit the witness to explain the statement at the time of his cross-examination instead of postponing the explanation for his

redirect examination.

10. Criminal law

359-Purpose of another in buying whisky found in defendant's possession is immaterial.

In a prosecution for unlawfully possessing whisky which was found in defendant's home, where witness testified he had purchased the whisky and placed it in defendant's home with out the latter's knowledge, it was immaterial for what purpose the witness had purchased the whisky.

11. Criminal law 1169(1)-Proof of friendly relations between wife of accused and purchaser of whisky held not prejudicial.

Even though evidence that defendant's wife brought food to the witness, who testified he had purchased and placed in defendant's house the whisky defendant was charged with possessing, was immaterial, the admission of such evidence could not be prejudicial to defendant, as it merely tended to show friendly relations existing between the parties.

12. Witnesses

289-Permitting cross-examination as to change of venue does not authorize redirect examination as to reasons.

The fact that defendant permitted the prosecution to cross-examine his witness as to a change of venue procured by the witness for the trial of a charge against him, which was immaterial, does not entitle defendant on redirect examination to inquire the reasons for the change of venue.

13. Criminal law 419, 420(10)-Testimony another told witness he purchased whisky is hearsay.

In a prosecution for the unlawful possession of intoxicating liquor, where a witness for defendant had testified that he bought the whisky and placed it in defendant's house without defendant's knowledge, evidence by another witness that the first witness told him he bought the whisky was properly excluded as hearsay.

139-Occupant of

room is in custody of whisky he knows another put there.

property of defendant or for defendant to have It is not necessary for the liquor to be the legal control over it to make him guilty of unlawful possession, but is essential that he should have the power to control it, and, if he knew that whisky was placed in his room by another, he had power to order it removed and was in unlawful possession thereof if he failed to do so.

17. Criminal law 1137(3)-Accused cannot complain of modification of instruction whose only error was in original.

and modified by the court was erroneous, but Where the instruction requested by accused the error therein was in the original part requested by accused, accused, having induced the court to commit the error, cannot complain thereof.

18. Criminal law 829(1)-Requested instructions covered by those given may be refused.

A conviction will not be reversed for as

signed error in refusing to give instructions requested by defendant, where the instructions given covered all of the matters contained in the requested instructions.

In Banc.

Appeal from Circuit Court, Wallowa Coun. ty; J. W. Knowles, Judge.

Barney Harris was convicted of unlawfully possessing intoxicating liquors, and he appeals. Affirmed.

R. J. Green, of La Grande (Green & Hess of La Grande, on the brief), for appellant.

J. A. Burleigh and A. E. Clawson, Dist Atty., both of Enterprise, for the State.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 211 P.-60

RAND. J. The defendant, Barney Harris,, case, not only that the defendant himself, was tried in the justice court and convicted but also his wife and Graves, had access of the crime of having intoxicating liquor unlawfully in his possession. From the sentence there imposed he appealed to the circuit court for Wallowa county, where he was again found guilty and was sentenced to pay a fine in the sum of $300 and to be imprisoned in the county jail for the period of six months. From this judgment he has appealed.

(211 P.)

Evidence

shop was raided by the police, and four bot-daily and constant observation. tles of beer were found in the front part of of these facts and circumstances, together his shop and four bottles under his bed. He testified that he did not own the beer, and that he had no knowledge of the fact that it was in his shop at the time it was seized by the officer. The statute of that state provides:

*

with the finding of the whisky, if credited by the jury, was sufficient to establish that defendant was guilty of the crime charged. and therefore it was proper for the court to submit the cause to the jury for its determination.

[5] Defendant assigns as error the admis*sion, over the objection and exception of the

"That it shall be unlawful for any person 車 to have, control or possess

any of the liquors mentioned," etc. Laws Miss. defendant, of the testimony of the sheriff

1918, c. 189, § 2.

The trial court instructed the jury that they should acquit the defendant unless they believed beyond all reasonable doubt that the liquor in question was in the conscious possession of the defendant; that is, that he knew it was there in the Shop and permitted it to remain there. The defendant was acquitted, and the city appealed. That court held:

to the effect that in making the search he found in a locked cupboard in the store from one to six dozen vanilla wrappers, together with two cases of Folger's vanilla and lemon extracts. The evidence introduced by the defendant disclosed that this extract contained as high as 65 per cent. of alcohol. As defined by section 2224-1, Or. L., intoxicating liquor includes "mixtures or preparation reasonably likely or intended to be used as a beverage, which shall contain in excess of onehalf of one per centum of alcohol by volume." If, as matter of fact, these extracts were reasonably likely to be used as a beverage, and defendant kept these extracts in the store for his own use as a beverage or kept them, intending to sell the extracts to others who would use them as a beverage, then his possession of the extracts was in violation of the statute. Whether the defendant had such unlawful intent was a question of fact for

"We think the lower court was correct in its interpretation of the law. The old rule that criminal intent must accompany a crime is still the law, even as to liquors, so far as we have been able to ascertain. There must be actual or constructive intent to do the thing which constitutes the crime; otherwise there is no criminal act. If it can be said that the liquor in this case was in the possession of the defendant merely because it was in his shop, when he did not know it, still such possession, not being conscious, was not actual and inten-the jury to determine. The testimony of the tional possession, as contemplated by the stat

ute.

"We do not think it was intended by the act to hold a person guilty of the offense of unlawfully having in his possession liquor, where he did not know or was not conscious of the possession, even if by any stretch of reasoning it can be said that a person is in the possession of an article when he does not know it. The proof offered by the defendant, denying knowledge of the possession, presented a question of fact for the determination of the jury; and, while such defense may furnish an avenue of escape in such cases, this is only true when the jury believes from the evidence the defendant did not have conscious possession of the liquor."

sheriff that in making the search he found the extracts and a considerable number of wrappers which had become detached from other bottles not then in the store and which had contained like extracts was admissible because pertinent upon this question. It was not required under the statute that the information should allege, and the information did not allege, the particular kind of intoxicating liquor that the defendant was charged with being in the possession of. Proof of the unlawful possession of intoxicating liquor of any kind, whether whisky, extracts or other spirituous liquor, was admissible in support of the charge, and it was competent for the state to prove defendant's possession of as many kinds of intoxicating liquor as the defendant, at the time, was in possession

The fact that the possession of the extracts might be either lawful or unlawful, according to the use the defendant intended to make of the extracts, did not affect the admissibility of the testimony. The state was entitled to prove defendant's possession of the extracts and to show that such possession was unlawful, and such proof was competent and admissible in support of the charge against the defendant.

[4] In the instant case the evidence clearly established that the defendant and his wife were in the exclusive, joint occupancy | of. and possession of the room where the liquor was found, and the room itself was a part of their living quarters. Graves was not an occupant of the room, nor did he have any right to go to the room, nor to place anything there without their permission. The evidence also disclosed that the defendant kept or permitted to be kept in his living room and bedroom a still and all the apparatus necessary to distill intoxicating liquor of the kind and character found. The evidence showed that the defendant was at the time, and prior to the search, living in these rooms, and therefore this apparatus for distilling intoxicating liquor was under his

[6] Defendant's objection and exception to the introduction of the testimony showing that at the time of the search there was a still and other apparatus used in the distillation of intoxicating liquor on the premises, and that mash was found in the catch