E. B. Dufur, of Portland, for appellant. Į ment of the judgments and for the purpose Veazie, McCourt & Veazie, of Portland, for of having them satisfied throws such susrespondents: picion on the bona fides of the case that we cannot say the court abused its discretion in requiring the plaintiff to pay the costs incurred upon the trial of the former cases before requiring the defendants to relitigate the same matter which had been decided in a previous suit. The appeal is dismissed. (84 Or. 307) STATE ex rel. OREGON BAR ASS'N v. (Supreme Court of Oregon. May 22, 1917.) ATTORNEY AND CLIENT ~52 DISBARMENT PROCEEDINGS-COMPLAINT. MCBRIDE, C. J. [1-3] The power of the court to make the order is amply sustained by the authorities. Schwede v. Hemrich, 29 Wash. 124, 69 Pac. 643; Carrothers v. Carrothers, 107 Ind. 530, 8 N. E. 563; Shear v. Box, 92 Ala. 596, 8 South. 792, 11 L. R. A. 620, and notes; Buckles v. Chicago, M. & St. P. Ry. Co. (C. C.) 47 Fed. 424. The order was interlocutory and was not appealable pending the expiration of the 90 days given plaintiff in which to comply therewith. Roth v. Wallach, 59 Misc. Rep. 515, 110 N. Y. Supp. 934; Trogdon v. Brinegar, 26 Ind. App. 441, 59 N. E. 1066. There was no abuse of discretion by the court. In a prior suit be- In proceedings under L. O. L. § 1092, subd. tween the same parties, wherein the same 1, providing that an attorney may be removed or suspended from practice "upon his being consubject-matter was involved and the identi-victed of any felony or of a misdemeanor incal relief sought as in the present case, there was a decree in favor of the defendants declaring that the judgments mentioned in the plaintiff's complaint therein, the satisfaction of which plaintiff was seeking by that suit to set aside, had been fully discharged and satisfied, and the plaintiff was enjoined from setting up, prosecuting, or attempting to proceed upon said judgments. Windsor v. Mourer et al., 76 Or. 281, 147 Pac. 533, 1190. That decree has never been set aside, nor is there any attempt to set it aside in the present suit, in which it is alleged that certain material evidence used in the former cause was false and forged, and that such forgery was unknown to plaintiff at the time of the trial, although known to the defendants. volving moral turpitude," a complaint charging merely that defendant was convicted in federal court of using the mails to defraud in violation of Penal Code U. S. (Act Cong. March 4, 1909, c. 321, 35 Stat. 1130 [Comp. St. 1916, § 10385]) § 215, was demurrable in the absence of specific and substantive charge that he actually committed the offense of which he was convicted. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 69, 70.] In Banc. Disbarment proceedings on the relation of the Oregon Bar Association against Wm. J. Prendergast. Demurrer to complaint sustained with leave to amend. This is a disbarment proceeding instituted by the state upon relation of the grievance committee of the Oregon Bar Association. The complaint charges, in substance: [4, 5] This is an attempt to retry the case "(5) That on, to wit, the last day of July, in another suit without setting aside the first 1916, a grand jury, duly impaneled in the Disdecree, which cannot be done. In addition, trict Court of the United States for the Disthe weight of authority is to the effect that trict of Oregon, returned an indictment against a decree cannot be impeached in a suit in tion 215 of the federal Penal Code; that in the the said Wm. J. Prendergast for violation of secequity merely upon allegations that it was said indictment it was charged that Wm. J. procured by perjured testimony. 23 Cyc. Prendergast on, to wit, the 9th day of Febru1027, 1028; Friese v. Hummel, 26 Or. 145, ary, 1916, in the city of Portland, in the state and district of Oregon, having devised and 37 Pac. 458, 46 Am. St. Rep. 610. The rea- intending to devise a scheme and artifice to deson for this rule is obvious. If a defeated fraud various and sundry persons named in said party can be allowed to retry a suit on the indictment, and for the purpose of furthering ground that material testimony given therein and executing said scheme and artifice to defraud, and for obtaining money and property was perjury, by the same token he could, if by means of false and fraudulent pretenses, repdefeated, retry the second suit by alleging resentations, and promises, did knowingly, willthat perjured testimony had been introduc- fully, unlawfully, and feloniously place and ed, and so on so long as he had the means to Ore., certain letters and other mailable matter cause to be placed in the post office at Portland, maintain the successive suits. The court, to the said various and sundry persons therein no doubt, took into consideration the previ- named, contrary to the form of statute in such ous litigation between the parties, the vague- case made and provided and against the peace ness of the allegations in the complaint, and and that by means of said scheme and artifice so and dignity of the United States of America; the failure of the plaintiff upon the former contrived and conceived the said Wm. J. Prentrial to produce the testimony of Mrs. Camp- dergast did defraud various and sundry individubell, or to take her deposition, although the als out of money, all contrary to the form of genuineness of the power of attorney and statute in such case made and provided. "(6) That on, to wit, July 6, 1916, Wm. J. the satisfaction of the judgment were con- Prendergast was arrested on said charge, and at troverted questions in that suit. The fail- a regular term of the District Court of the ure of Mrs. Campbell in her affidavit filed United States for the District of Oregon, held at the federal courthouse in Portland, Or., on upon the present motion to deny that she rethe 17th day of November, 1916, the said Wm. ceived from the defendants $6,570 in settle-J. Prendergast was duly and legally tried and The demurrer will be sustained, and the relator will have 30 days within which to file an amended complaint. convicted of the crime charged in said indict- | adopted by Chief Justice Bean in Ex parte ment, to wit, using the mails of the United Biggs, supra, which we follow in this case. States to defraud; that judgment was by the said District Court of the United States for the District of Oregon pronounced against Wm. J. Prendergast, and he was sentenced and ordered to pay a fine of $800; and that on, to wit, the 5th day of February, 1917, the said Wm. J. Prendergast did pay said fine, whereby and by reason whereof said judgment of conviction became and is final against the said Wm. J. Prendergast. ELLIOTT v. STATE. (Supreme Court of Arizona. cence. (19 Ariz. 1) (No. 426.) May 19, 1917.) "(7) That Wm. J. Prendergast has been, by reason of the proceedings herein referred to, 1. INTOXICATING LIQUORS 168-"PERMIT." convicted of a felony and a crime involving To "permit" the unlawful use of intoxicatmoral turpitude; that by reason of the said ing liquors by the proprietor of a business imconviction the said Wm. J. Prendergast has for-plies his knowledge and consent and acquiesfeited all rights to practice in or appear before this or any other court of the state of Oregon; and that the said Wm. J. Prendergast should be required and cited to show cause why he should not be disbarred from further practice before the courts of the state of Oregon, and this court's records purged of his name." The statute applicable to this subject is found in subdivision 1 of section 1092, L. O. L., and provides that an attorney may be removed or suspended from practice "upon his being convicted of any felony or of a misdemeanor involving moral turpitude, in either of which cases the record of his conviction is conclusive evidence." The defendant demurs generally to the complaint. Elton Watkins, of Portland, for plaintiff. Ralph E. Moody, of Portland, for defendant. MCBRIDE, C. J. (after stating the facts as above). The facts recited in the indictment upon which the defendant was convicted indicate that he was guilty of the use of the United States mails with intent to defraud; and while this is an offense against the laws of the United States and is declared to be a felony, it is not so under the laws of Oregon. In Ex parte Biggs, 52 Or. 433, 97 Pac. 713, it was held that the words "felony" and "misdemeanor" were used in their statutory sense, and that, there being no such offense as that of which the defendant was convicted in the federal court, an allegation of such trial and conviction was, in the absence of a specific and substantive charge that he actually committed the offense of which he was convicted, insufficient to sustain a charge of violation of subdivision 1 of section 1092, supra. The complaint in the matter at bar does not charge the defendant with defrauding or attempting to defraud any one by an unlawful use of the mails, but merely recites that he was so charged in an indictment found in the federal courts. If the same accusation made in the federal court had been made in the complaint in the matter at bar, the record of defendant's conviction would probably be conclusive evidence of his violation of his duty as an attorney, but there would still be open for inquiry the question of the extent of his guilt as a means of determining the nature of the penalty to be imposed. Such seems to be the line of the reasoning [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 189-192. For other definitions, see Words and Phrases, First and Second Series, Permission-Permit.] 2. INTOXICATING LIQUORS 168 PRINCIPLES-STATUTE. The proprietor of a soft drink place was not liable for the unlawful sale of intoxicating liquors by his employé, although committed in his place of business, unless such unlawful act was directed, or knowingly assented to, acquiesced in, or permitted by the employer. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 189-192.] 3. CRIMINAL LAW 829(1)-INSTRUCTIONSREPETITION. Refusal of proper instruction asked was not ground for reversal, where an instruction given was considered by court to cover the same ground. [Ed. Note.-For other cases, Law, Cent. Dig. § 2011.] see Criminal 4. CRIMINAL LAW 370-EVIDENCE-ADMISSIBILITY-OTHER SALES. In a prosecution for the illegal sale of intoxicating liquors by an employé of defendant, evidence of other sales of intoxicating liquors charged was properly admitted to show knowlby such employé both before and after the sale edge, consent, and acquiescence in the sales by the defendant. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 825-829.] 5. CRIMINAL LAW 783(1)-INSTRUCTIONS. In a prosecution for sale of intoxicating liquors by an employé of the defendant, an inadmitted of sales other than the one charged, struction was requested that evidence had been and verdict should not be rendered against de fendants or either of them by reason of such other sales, and that the material sale is that alleged to have been made on a certain date. The court gave this instruction, adding thereto: "Evidence of other sales was admitted for the purpose merely of aiding in determining whether or not there was a sale on the date alleged." Held, that the instruction as requested and as modified was too general as a definition of the purpose of admitting evidence of other sales. Law, Cent. Dig. §§ 1872-1874, 1876.] [Ed. Note. For other cases, see Criminal 6. CRIMINAL LAW 370 - EVIDENCE — AD MISSIBILITY. In a prosecution for the illegal sale of intoxicating liquors by an employé of defendant, although a conviction could not be had upon other sales, evidence of other sales not personally made by defendant were competent to show scienter or knowledge on his part; it being a reasonable and fair inference that if liquor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 8. CRIMINAL LAW 11661⁄2 (1) — REVIEW REVERSIBLE Error. In a prosecution for the illegal sale of intoxicating liquors by an employé of defendant, where a person during the trial sent a whisky glass containing liquor to defendant's attorney, who immediately disclaimed knowledge of the performance, and upon inquiry from the court, the person stated that it was ginger ale, and that he brought it for the defendant, who then drank the liquor, and the court later called the person for examination, and fined him for contempt after his statement that he wanted the jury to see that ginger ale looked like whisky, and that his purpose was to influence them in behalf of his defendant, the refusal of the court to excuse the jury while such person was being examined was not reversible error, since it is probable that the jury were less prejudiced by the explanation of the act than they would have been had they been left to guess or draw on their imaginations for an explanation. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §8 3119-3122, 3128.] 9. INTOXICATING LIQUORS 236(4) EVIDENCE-SUFFICIENCY. In a prosecution for the illegal sale of intoxicating liquors by an employé of the defendant, evidence held to support a verdict of guilty. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 305, 306.] Appeal from Superior Court, Maricopa County; R. C. Stanford, Judge. J. J. Elliott was convicted of violating the prohibition law, and he appeals. Affirmed. Struckmeyer & Jenckes, A. S. Hawkins, and R. G. Langmade, all of Phoenix, for appellant. Wiley E. Jones, Atty. Gen., and Geo. W. Harben and R. W. Kramer, Asst. Attys. Gen., for the State. ROSS, J. The appellant Elliott and one Henry Wright were jointly informed against for violating the prohibition law. They were tried together and both convicted. Elliott appeals, assigning as error the giving by the court of the following two instructions: "1. I charge you, gentlemen of the jury, that all persons who are concerned in the commission of a crime are guilty of its commission. In order to be guilty it is not necessary that one should actually commit the crime. It is sufficient if he aids and abets therein, whether he be present or absent. If a proprietor of a drinking establishment permits intoxicating liquor therein to be sold in violation of the law, he is guilty the same as the one who actually sold the liquor. in this case is the sale that is alleged to have been made on October 6, 1916. Evidence of other sales was admitted for the purpose merely of aiding you in determining whether or not there was a sale on the date alleged." And the refusal to give the following instruction: is not liable for the unlawful acts of Henry "3. The court instructs the jury that Elliott Wright, if any, though such unlawful act, if any, was committed in Elliott's business, unless such unlawful act was directed or knowingly assented to or acquiesced in by said Elliott." It is necessary to set forth some of the facts developed in the evidence in order intelligently to get the viewpoint of the appellant, and to determine if there is merit in his contentions. The evidence shows that appellant was the owner and proprietor of a soft drink place known as the "Health Office" in the city of Phoenix. Henry Wright, the other defendant, was employed as a clerk in the Health Office. It is without controversy that the sale of liquor charged in the information was made by Wright in the absence of appellant, the owner and proprietor of the Health Office. The first instruction above complained of finds justification, if at all, upon the theory that it was not necessary to the guilt of appellant that he should have personally made the sale; that the law holds him responsible for any sale made by his clerk or agent, providing it was with the knowledge or consent or acquiescence of the appellant. The question was as to whether Wright in making the sale was acting as the agent of the appellant, or whether he was acting without the scope of his authority and instructions and in violation thereof. In the latter case the act would have been Wright's only, and the guilt would attach to him, but if the sale was made with the permission of appellant, he was particeps criminis in the transaction, and is as guilty as if he had personally made the sale. In such case both Wright and appellant were principals as, under our law, the common-law distinction of accessory before the fact and principal is abolished, and all who aid and abet in the commission of a crime or, not being present, have advised and encouraged its commission, are principals. Sections 27 and 955, Penal Code 1913. [1] To "permit" the unlawful sale of intoxicating liquors by the proprietor of a business implies knowledge, consent, and acquiescence. The Standard Dictionary defines "permit" as follows: "1. To allow by tacit consent or by not hindering; take no steps to prevent; consent tacitly to; suffer. 2. To grant leave to by express consent or authorization; empower expressly; authorize." [2, 3] The correlative instruction No. 3 above, refused by the court, undoubtedly states a correct principle of law, and we think should properly have been given to the "2. The court instructs the jury that there has been evidence admitted in this cause of sales other than the one herein charged, and that you are not to render any verdict against the defendants, or either of them, by reason of jury. Its refusal, however, in view of the any such other sales. The sale that is material first instruction which the court doubtless from the court as to what the drink was and who sent it in, Locke, from the rear of the courtroom, answered: "It is ginger ale. conceived covered the same ground, is not, honor. I have no part in it." Upon inquiry such error as would justify a reversal of the case. We believe from the first instruction the jury must have understood before a conviction of appellant could be had that it should be found he counseled, advised, and permitted the sale. [4] Evidence of other sales of intoxicating liquor by Henry Wright both before and after the date of the sale charged in the information was before the jury. These sales, if the evidence is to be believed, were as much a part of the business of the Health Office as the sale of soft drinks. The chances to get liquor apparently depended upon the belief of Wright that the purchaser would not divulge the source of his supply. These other sales were properly admitted for the purpose of showing knowledge, consent, or acquiescence in the sales by the appellant. Joyce, Intoxicating Liquor, § 688. It was this evidence that called for instruction No. 2. This instruction was given upon the request of appellant, except that the court added the last sentence thereof: "Evidence of other sales was admitted for the purpose merely of aiding you in determining whether or not there was a sale on the date al leged." [5, 6] The instruction neither as requested nor as modified under the present facts correctly defined the purpose of admitting evidence of other sales than the one charged. It is true, as stated in the instruction, that a conviction could not be had upon other sales. It is equally true that the other sales, not having been personally made by the appellant, were competent to show scienter or knowledge upon his part, it being a reasonable and fair inference that if liquor was being frequently disposed of in the Health Office the proprietor thereof presumably was familiar with it. The instruction requested and modified was a too general statement of the law applicable to the facts; it was not as specific as it should have been. [7] In the view that the Health Office was making it a business to sell liquor, and there was some evidence to that effect, the modification of the instruction made by the court, while not a strictly accurate statement of the law, was hardly misleading or at least prejudicial. We think it is but a commen sense proposition that evidence of other sales in a place of the kind of appellant's would aid a jury in determining whether the specific sale charged was proved, it being not an incident of, but growing out of, the course of the business. 23 Cyc. 269, 270. I sent it in to Jack" (meaning Elliott). The appellant thereupon drank the liquor in the glass. A little later and after the witness then on the stand was excused the court called Locke to the bar to inquire of him the purpose of his sending the whisky glass of liquor into the courtroom. Appellant's attorney asked that the jury be excused during the examination, which request was refused by the court. Locke admitted, upon being questioned, that he wanted the jury to have an ocular demonstration that ginger ale looked like whisky and that his purpose was to influence the jury in behalf of his friend, the appellant. Several questions were asked Locke by the court, after which a fine was imposed upon Locke for contempt, the appellant's attorney all the time objecting to the proceeding being had in the presence of the jury. The court several times remarked, in substance, that Locke had, no doubt, hurt the appellant's case before the jury; that its purpose was to hurt the prosecution's case and to help the defendant's case. These remarks, it is contended, were prejudicial to the appellant. The trial court accepted the statement of the attorney for appellant that he had no part in the episode of introducing the glass of liquor, as true, and exonerated him from all blame. From our knowledge of the high character and learning of the attorney, we feel certain that such a thing would not be countenanced by him, and that if he had been advised of it in advance he would have frowned upon it with indignation and resentment. We cannot say so much, however, for the appellant. Neither at the time of the episode nor during the contempt proceedings nor at any time during the trial was it shown or attempted to be shown that the appellant was free from inducing or causing the conduct of Locke. It is possible that he had no previous knowledge of Locke's intentions or purpose, but it is hardly probable that Locke would assume to do what he did without first consulting the appellant. The very hurried manner in which the appellant drank the liquid from the glass would indicate that he knew from where it came, and why, and that he understood it to be necessary for him to drink the liquid in the presence of the jury to carry out his part of the demonstration. If the scheme was planned or acquiesced in by appellant and prejudice resulted therefrom, he only is to blame. In the course of the trial, while a witness was testifying, a man by the name of E. A. Locke gave to the court bailiff a small whis- It may be that the jury should have been ky glass containing liquor and requested him excused while Locke was examined and punto give it to appellant's attorney. The bailiff ished in contempt. The jury no doubt was set the whisky glass in front of appellant's as much surprised at the appearance of this attorney, stating that it had been sent to mysterious glass of liquor in the midst of him, whereupon appellant's attorney stated: the trial as was the court and all of the "I don't understand such a performance, your attorneys. Something had happened that needed explanation. We do not believe the letting the jury into the knowledge of who had sent the liquor into the courtroom and his purpose in so doing could have prejudiced the jury against the appellant any more than if the incident had been silently passed by leaving them to guess or to draw on their imaginations for an explanation. [8] It was not so much the carrying on of the contempt proceedings against Locke in the presence of the jury as the incident that provoked the proceedings that may have influenced the jury's verdict. To give this episode the force and effect of prejudicial error demanding a reversal of the case would be an invitation to defendants in criminal cases to induce error in order to avoid the binding effect of a jury's verdict. [9] Independent of this incident a careful examination of the evidence satisfies us that the jury could not reasonably, under their oaths, have returned any other verdict than one of guilty. Judgment is affirmed. FRANKLIN, C. J., and CUNNINGHAM, J., concur. (19 Ariz. 7) ROUSS v. RACKET STORE. (No. 1533.) Evidence held wholly insufficient to show a partnership, as all acts which would indicate that the same were without authority or assent of one of the two defendants, and were never ratified by him. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 75, 78, 79, 81.] Appeal from Superior Court, Navajo Coun ty; John A. Ellis, Judge. for a new trial was denied, and from the judgment and order this appeal is prosecuted. In the argument and briefs there is much said pro and con about a certain stipulation which appellant contends limited the issues to be tried to the sole question of the copartnership relation of La Prade with the other defendants. In the view we take of the case it is unnecessary to consider the effect of the stipulation, it being sufficient to decide whether there is any substantial evidence in the record, about which the minds of reasonable men might differ, that the defendant La Prade was a member of the alleged copartnership. The defendant Hunter, when he first located in Winslow, commenced doing business in a small way, buying and selling dry goods and notions. He was assisted in this business by his wife, the defendant Lenna L. Hunter. At the beginning he occupied some property owned by La Prade as a subtenant. Afterwards, when the business had grown a little, Hunter rented another piece of property from La Prade, in which he located the "Racket Store," he and his wife occupying some living rooms adjoining. After conducting this business a few years the Hunters left Winslow rather unexpectedly, leaving behind what remained of the stock of goods and this alleged indebtedness against the business as a remembrance. There are little bits of testimony sprinkled over the record, and which it is needless to mention in detail, all compatible, however, with the relation of landlord and tenant, but none of these having any force as evidence of any copartnership interest on the part of La Prade in the "Racket Store." Such, for instance, as on occasions when Hunter was hard pressed for money, La Action by Peter W. Rouss, trading as Prade would help him out in the way of Charles Broadway Rouss, against the Racket Store, a copartnership composed of F. T. La small loans. La Prade also got some items of merchandise from the store, such as a Prade and others. From a judgment for La pair of pants, a few shirts, and the like. One Prade and from an order overruling plain-of plaintiff's exhibits is a note and contract. tiff's motion for a new trial, he appeals. Affirmed. Thorwald Larson, of Holbrook, and Norris & Mitchell, of Prescott, for appellant. X. N. Steeves, of Williams, for appellee. The note is a joint and several one in favor of Rouss. It is dated April 2, 1912, and purports to be signed by the Hunters and La Prade. Both note and contract expressly recite that the note is given as collateral se FRANKLIN, C. J. Peter W. Rouss, trad- limited to a credit extended, or about to be curity for the payment of an open account ing as Charles Broadway Rouss, in the city extended, to W. G. Hunter, in merchandise of New York, brought this action against to the amount of $300. La Prade emphatWarren G. Hunter, Lenna L. Hunter, and F. T. La Prade as a copartnership doing busi-ically asserts that the signature to the alness under the firm name of the "Racket leged "note and contract" purporting to be Store," in Winslow, Ariz. his signature is a forgery. La Prade uneThe plaintiff sought to recover $1,490.42 on an open ac- quivocally denies that he ever signed any count for merchandise alleged to have been such paper at any time or at all. There is sold and delivered to said the "Racket no satisfactory evidence that he did sign it. Store." At the close of the evidence the jury The officers of the bank who were called to was instructed to return a verdict in favor identify the signature expressed doubts of the defendant La Prade and against the about it being genuine. On April 5, 1912, plaintiff. This was done, and, following the Hunter went to the Navajo-Apache Bank & verdict, judgment was entered. A motion Trust Company in Winslow and asked the |
