the attorney, as Mr. Justice Selden says, "he must of necessity and in reason be exempted from the obligation of secrecy." Rochester City Bank and Lester, Agt., v. Suydam and Others, 5 How. Prac. 254; Mitchell et al. v. Bromgerger, 2 Nev. 345, 90 Am. Dec. 550. Also, in a trial of a husband for homicide, it is competent for defendant to testify that his wife told him, immediately before the shooting, that the deceased had threatened to kill him. Shepherd v. Commonwealth, 85 S. W. 191, 119 Ky. 931. And other similar cases will readily suggest themselves upon a moment's thought.

Now in this case defendant was on trial for perjury in swearing that his wife had deserted him. The truth of this oath, or that It was honestly made, may have depended largely, if not entirely, upon the declarations the wife made to him concerning her intention and characterizing her acts. It would be a hard and unjust rule to deny him the right to protect his personal liberty, and we think the law does not require us to so hold, by giving such declarations in evidence. Judgment reversed, and new trial ordered.

(50 Or. 1)

STATE V. CARMODY.* (Supreme Court of Oregon. Aug. 20, 1907.) 1. INTOXICATING LIQUORS-LOCAL OPTIONPRIMA FACIE EVIDENCE.

Under Local Option Law (Laws 1905, p. 47, c. 2), § 10, providing that the order of the county court declaring the result of an election under the act and prohibiting the sale of intoxicating liquors within the prescribed territory "shall be held to be prima facie evidence that all the provisions of the law have been complied with in giving notice of and holding such election, and in counting and returning the votes and declaring the result thereof," such order is prima facie evidence of the legality of all previous proceedings in the matter of the election, so that it is unnecessary, on a prosecution for a sale in violation of the act, to allege or prove that a valid election was held, or that a majority of the voters was in favor of prohibition, otherwise than to allege and produce such order. 2. CRIMINAL LAW-EVIDENCE-BEER-INTOXICATING QUALITIES JUDICIAL NOTICE.

A charge of unlawfully selling intoxicating liquor is sustained by proof of sale of "beer, without any further description or testimony that it was intoxicating.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 716.]

8. SAME-AIDING AND A BETTING.

An instruction, on a prosecution for an illegal sale of intoxicating liquors, that defendant would be guilty if he aided or assisted B. in effecting the sale in violation of law, is not error; B. & C. Comp. § 2153. declaring one who aids and abets in the commission of a crime to be a principal.

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Henry Carmody appeals from a conviction. Affirmed.

On October 6, 1906, the district attorney of the Third judicial district filed in the circuit court for Marion county an information charging defendant with the crime of selling For opinion on rehearing, see 91 Pac. 1081.

intoxicating liquors. The material parts of the information are as follows: "That at the general election held in the county of Marion, state of Oregon, on the 4th day of June, 1906, the question whether there should be prohibition of the sale of intoxicating liquor for beverage purposes for Horeb precinct, Marion county, state of Oregon, was submitted to the legal voters of said precinct, county, and state, and then and there duly determined by a majority of the legal voters of said precinct at said election in favor of prohibition, and that the sale of intoxicating liquor should be prohibited in said precinct. That thereafter, on the 15th day of June, 1906, the county court of Marion county, state of Oregon, duly made and entered of record an order declaring the result of said vote and absolutely prohibiting the sale of intoxicating liquors as a beverage in said Horeb precinct as a whole, and declaring it to be unlawful to sell, exchange, or give away any intoxicating liquor for beverage purposes within said Horeb precinct until such time as the qualified voters therein by a majority vote declared otherwise. That thereafter, to wit, on the 2d day of September, 1906, in the precinct of Horeb, county of Marion, state of Oregon, Henry Carmody, then and there being, did then and there wrongfully and unlawfully sell and give to one Royal Shaw and William Quinn jointly six bottles of intoxicating liquor, of the value of $1.50, with an intent and purpose then and there had by him, the said Henry Carmody, of evading the provisions of the local option law of the state of Oregon, proposed by the people of initiative and enacted by the people of the state of Oregon by a majority of the votes cast thereon at the general election held in said state on the 6th day of June, 1904, contrary to the provisions of said law in such cases made and provided, and against the peace and dignity of the state of Oregon."

A demurrer to the information was filed on the grounds: (1) That it does not state facts sufficient to constitute a crime; (2) that it does not show any violation of the law by defendant; (3) that it does not show that the question of prohibition in Horeb precinct was submitted to the legal voters of such precinct; (4) that it does not show that the legal voters of such precinct determined by their vote or at all that intoxicating liquor should not be sold or given away in such precinct; (5) that it does not show that the county court had power or authority to make the order of prohibition stated in the information. This demurrer was overruled, and defendant pleaded not guilty. Thereupon a trial was had before the court and a jury.

The testimony for the state tended to show: That in September, 1906, two men, Shaw and Quinn, went to the house of defendant, in the precinct of Horeb, Marion county, and inquired if they could buy some beer from

him. Defendant told them he had none, but could get some for them, and went away, returning in a short time. That a few minutes later a man by the name of Baty brought six bottles of beer in a sack and laid them on the floor just inside of defendant's door and went away. Shaw and Quinn had no conversation with Baty about the beer, or the purchase or payment therefor. After Baty had gone they paid defendant $1.50 for the beer and took it away with them. There was no evidence adduced by the state tending to show the character of the beer, other than it was in bottles having thereon the label of the Albany Brewing Company. The defendant in his own behalf testified: That when Shaw and Quinn came to his house they asked him if he had any beer, and he answered in the negative. That thereupon they inquired of him if beer could be procured in the town, and he told them that Baty had a barrel, and they requested him to purchase some from him, as they were not acquainted with Baty. That he went to where Baty was, and told him that Shaw and Quinn wanted six bottles of beer, and soon after he returned Baty brought the beer in a guany sack and placed it on his porch. That one of the men paid him $1.50 for the beer, and he handed the money to Baty in their presence. That he did not own the beer, and was acting merely as an accommodation to the purchasers. The state to sustain the issues on its part introduced, and there was admitted over defendant's objection, a certified copy of the order or judg ment of the county court of Marion county, declaring that a majority of the votes cast in Horeb precinct, in the June election in 1906, was in favor of prohibition, and prohibiting the sale of intoxicating liquor in such precinct until the legal voters thereof should otherwise determine.

The court nstructed the jury that, as a matter of judicial knowledge, beer is an intoxicating liquor; that it was not necessary for the state to prove that defendant owned the beer, or was interested in the money received therefor; but that if the beer belonged to Baty, and the money was received by him, the defendant would be guilty if he aided or assisted Baty in effecting the sale in violation of law. The defendant was convicted, and appeals. assigning error in overruling his demurrer to the information, in the admission of the record of the county court prohibiting the sale of intoxicating liquor in Horeb precinct, and in the giving and refusal of the instructions referred to.

W. II. Holmes, for appellant. John H. McNary, Dist. Atty.. for the State.

BEAN, C. J. (after stating the facts). The objection to the information, and to the competency of the record of the county court declaring the result of the election and prohibiting the sale of intoxicating liquor in Horeb precinct, is, in substance, that it is

not alleged in the information, nor was it shown at the trial, that a legal and valid election to decide whether the sale of intoxicating liquor should be prohibited in such precinct was ordered or held as required by law. Section 10 of the local option law (Laws 1905, p. 47, c. 2) provides that the order of the county court declaring the result of an election held under its provisions and prohibiting the sale of intoxicating liquor within the prescribed territory "shall be held to be prima facie evidence that all the provisions of the law have been complied with in giving notice of and holding such election, and in counting and returning the votes and declaring the result thereof." The plain purpose of this provision is to make the order of the county court prima facie evidence of the legality of all previous proceedings in the matter of the election. It is therefore unnecessary, in a prosecution for a violation of the act, for the state to allege or prove that a valid election was held, or that a majority of the voters in the county, subdivision, or precinct, as the case may be, was in favor of prohibition. The order of the county court is prima facie evidence of these facts, and the production of such an order is all that is required by the state to make out its case. It is thereafter open to the defense to overcome such prima facie case by proving that the essential steps provided by the statute were not taken. This is the interpretation given a similar provision in a local option law by the courts of Missouri and Michigan. State v. Searcy, 46 Mo. App. 421; Id., 111 Mo. 236, 20 S. W. 186; People v. Whitney, 105 Mich. 622, 63 N. W. 765.

2. The courts are not in accord as to whether a charge of unlawfully selling intoxicating liquor is sustained by proof that the liquor sold was "beer," without anything giving to it a particular description, or evidence that it was intoxicating. In a number of decisions it is held that the word "beer" is a generic term, including both a class of alcoholic liquors and a class of nonintoxicating beverages, such as "root beer," "ginger beer," "spruce beer," and the like, and therefore it cannot be said in its ordinary meaning to imply an intoxicating drink, unless such import has been given it, either by statute or by decisions of the courts. Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 669, is a leading example of this class of cases. But Mr. Black says that this is not the approved rule. "On the contrary, the preponderance of authority is to the effect that when the word 'beer' is used, without any restriction or qualification, it denotes an intoxicating malt liquor: that when thus occurring in an indictment or complaint, or in the evidence, it is presumed to include only that species of beverages; and that, being taken in this sense, it will be sufficient, unless it is shown by evidence that the particu lar liquor so described is nonalcoholic.” Black on Intoxicating Liquor, § 17. Mr. Me

Clain is of the same opinion (2 McClain, § 1220), and so are the editors of Am. & Eng. Ency. of Law (volume 17, p. 201). The adjudications on both sides of this question are collated and cited by these authors, and it is sufficient to say we concur in the views expressed by them.

The reasons which impel us to this conclusion are so clearly and forcibly stated by Mr. Justice Orton, in Briffitt v. State, 58 Wis. 39, 16 N. W. 39, 46 Am. Rep. 621, that we quote from his opinion at some length: "As long as laws for licensing the sale of intoxicating liquors have existed, brandy, whisky, gin, rum, and other alcoholic liquids have been held to be intoxicating liquors per se; and why? Simply because it is within the common knowledge and ordinary understanding that they are intoxicating liquors. By this rule of common knowledge courts take judicial notice that certain things are verities, without proof; as, in Chambers v. George, 5 Litt. [Ky.] 335, the circulating medium in popular acceptation was held to mean 'currency of the state,' and in Lampton v. Haggard, 3 T. B. Mon. [Ky.] 149, the circulating medium was held to mean 'Kentucky currency,' and in Jones v. Overstreet, 4 T. B. Mon. [Ky.] 547, the word 'money' was held to mean paper currency. If a witness on the stand were asked whether whisky is intoxicating, he would be apt to smile as at a joke; and an intelligent witness, when asked the same question in relation to beer, might smile with equal reason. Words in contracts and laws are to be understood in their plain, ordinary, and popular sense, unless they are technical, local, or provincial, or their meaning is modified by the usage of trade. 1 Greenl. Ev. § 278. When the general or primary meaning of a word is once established by such common usage and general acceptation, we do not require evidence of its meaning by the testimony of witnesses, but look for its definition in the dictionary. Whisky, according to Webster, is 'a spirit distilled from grain'; and beer, according to the same authority, is 'a fermented liquor made from any malted grain, with hops and other bitter flavoring matter.' It is true that to a limited extent there are other kinds of beer, or of liquor called 'beer,' such as 'small beer,' 'spruce beer,' 'ginger beer,' etc.; but such definitions are placed as remote and special, and not primary or general. So it may be said of other substances having a common name and meaning, such as milk or tea. Milk, according to Webster, is 'a white fluid secreted by female mammals for the nourishment of their young.' There are other kinds of milk, however, such as 'the white juice of plants,' which is the remote definition, or milk in the cocoanut, or that in the Milky Way. Tea is defined to be 'leaves of a shrub or small tree of the genus Thea or Camellia. The shrub is a native of China and Japan.' There are other kinds of tea, such as sage tea and camomile tea, etc. The

latter are the restricted uses of the word. When asked to take a drink of milk, or a cup of tea, it would not be necessary to prove what is meant. Why is it more necessary to prove what is meant by a glass, or drink, of beer? When beer is called for at the bar, in a saloon or hotel, the bar tender would know at once, from the common use of the word, that strong beer-a spirituous or intoxicating beer-was wanted; and, if any other kind was wanted, the word would be qualified, and the particular kind would be named, as root beer, or small beer, etc. When, therefore, the word 'beer', is used in a court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor, or such meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant. When the witnesses in this case testified that the defendant sold to them beer, the prosecution had sufficiently proved that he had sold to them a malt and intoxicating liquor, for both qualities are implied in the word 'beer.' This, as a logical conclusion and principle of law, would seem to be well established by common reason, and we think it would be difficult to find a single good reason against it." See, also, United States v. Ducournau (C. C.) 54 Fed. 138.

3. The instruction, that if defendant aided and assisted Baty in committing the crime of selling intoxicating liquor he was guilty as charged in the indictment, was but stating a rule of statutory law, and was not error. B. & C. Comp. § 2153. Judgment affirmed.

(50 Or. 9)

KAMM v. NORMAND et al. (Supreme Court of Oregon.. Aug. 20, 1907.) 1. NAVIGABLE WATERS-DAMS.

While dams and embankments may be constructed in or along floatable streams to facilitate their use, they may not be constructed to the extent of injuring a riparian proprietor by retarding the flow of water or sending it down in increased volume, to his injury or at times when the stream would not be otherwise navigable.

2. SAME-FLOATAGE OF LOGS.

In a suit to enjoin the use of a stream for the floating of saw logs, evidence held to show that they could not be floated in the natural condition of the stream, except at extreme high water, continuing for a few hours at a time, and then only small logs.

3. SAME.

Where a stream was such that in its natural condition saw logs could not be floated therein, except at extreme high water, continued for a few hours at a time, and then only small logs, it was not a navigable stream for the purpose of floatage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Navigable Waters, & 9.]

Appeal from Circuit Court, Clatsop County; T. A. McBride, Judge.

Suit by Joseph Kamm against Alex Normand and others, to restrain defendants from using a certain stream for the flowage

of saw logs. From a decree in favor of plaintiff, defendants appeal. Reversed and rendered.

This is a suit to enjoin defendants from using the North Fork of Klaskanie creek for floating saw logs. The complaint alleges that the stream in question runs through plaintiff's land for a distance of about onehalf mile, and that it is not navigable or floatable for rafts. logs, lumber, or timber; that the defendants cut and put into the channel above plaintiff's premises large quantities of saw logs, and, in order to cause them to float down such stream, constructed a splash dam, whereby a large volume of water was accumulated and suddenly released and permitted to flow down the stream, forcing the logs on plaintiff's land in great numbers, cutting and breaking the banks, and otherwise damaging his premises; and that, unless enjoined and restrained, deand restrained, defendants will continue to so use the stream, to plaintiff's irreparable damage. Defendants admit, by their answer, that they are engaged in the logging business on the stream above the lands of plaintiff, and that they have constructed therein a splash dam for use in their logging operations. But they allege that the stream is navigable and suitable for the floatage of saw logs and other timber products where it runs through, and for several miles above, plaintiff's lands; that they are the owners of large tracts of valuable timber lands on the stream, and the only way the timber can be marketed is by floating it down such stream; that the stream is not navigable at all stages of the water, but has well-defined banks on either side; that in October, 1903, they constructed, at great expense, about two miles above the premises of plaintiff, a splash dam for the purpose of aiding and assisting the floatage of logs; that such dam is so constructed and operated as to be a benefit to plaintiff, since it is possible thereby to control the water and prevent it from overflowing the banks or reaching the height of ordinary freshets; and that logs floated down stream by use of the dam do less injury to plaintiff's premises than if floated without such dam. Upon

a trial the court found the averments of the answer to be substantially true, and dismissed the suit, and plaintiff appeals.

J. M. Gearin and Frank J. Taylor, for appellants. C. E. S. Wood and G. C. Fulton, for respondent.

BEAN, C. J. (after stating the facts). The questions for determination on this appeal

(1) Whether the Klaskanie, where it flows through the lands of plaintiff, is a navigable or floatable stream; (2) to what extent, if any, the defendants may render it navigable or assist the navigability thereof by means of a splash dam.

The common law of England, that the only streams which are navigable are those in which the tide ebbs and flows, has never been 91 P.-29

adopted in this country. Rules which reason and convenience may have approved in reference to the streams of that country are wholly inapplicable to our waterways, natural resources, and conditions, and it is now considered here that any stream which can be used in its natural state for commercial purposes is navigable. The existence of immense bodies of timber in Maine, Michigan, and other states, which could be transported to market only by use of adjacent streams, influenced the courts to early hold that any stream which is capable in its natural condition of being commonly and generally used for floating saw logs at periods of high water is navigable or floatable for the transportation of the timber along its banks. This doctrine has been accepted and declared by this court, and the courts of this country generally, until now it may be regarded as settled that streams, which in their natural condition are useful for the transportation of saw logs during the whole or part of each year, are highways for that purpose. Brown v. Chadbourne, 31 Me. 9, 1 Am. Rep. 641; Moore v. Sanborne, 2 Mich. 520, 59 Am. Dec. 209; Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621; Shaw v. Oswego Iron Co., 10 Or. 371, 45 Am. Rep. 146; Haines v. Welch et al., 14 Or. 319, 12 Pac. 502; Haines v. Hall, 17 Or. 165, 20 Pac. 831, 3 L. R. A. 609; Nutter v. Gallagher, 19 Or. 375, 24 Pac. 250; Hallock v. Suitor, 37 Or. 9, 60 Pac. 384; 27 Cyc. 1566; 21 Am. & Eng. Ency. 428. But streams which are not of sufficient size and capacity to be profitably so used are wholly and absolutely private. Munson v. Hungerford, 6 Barb. (N. Y.) 265; Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525. "The true test, therefore to be applied in such cases," says the Supreme Court of Maine, in Brown v. Chadbourne, supra, "is whether a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts or logs." It is not necessary that the stream should be floatable at all seasons of the year. It is sufficient if it has that character at different periods, recurring with reasonable certainty, and continuing for a sufficient length of time to make it commercially profitable and beneficial to the general public. But every small creek or rivulet in which logs can be made to float for a few hours during a freshet is not a public highway. To make a stream a highway, it must at least be navigable or floatable in its natural state, at ordinary recurring winter freshets, long enough to make it useful for some purpose of trade or agriculture. People v. Elk River M. & L. Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125; Rowe et al. v. Granite Bridge Corp. 21 Pick. (Mass.) 344; Morgan v. King, 18 Barb. (N. Y.) 277; Id., 35 N. Y. 454, 91 Am. Dec. 67; Banks v. Frazier, 64 S. W. 983, 111 Ky. 909; Commissioners of Burke Co. v. Catawba Lumber Co. et al., 115 N. C. 590, 20 S. E. 707, 847; Lewis

v. Coffee Co., 77 Ala. 190. 54 Am. Rep. 55; Hubbard v. Bell, 54 Ill. 110, 5 Am. Rep. 98; Carlson v. St. Louis River Dam & Improv. Co., 73 Minn. 128, 75 N. W. 1044, 72 Am. St. Rep. 610. 41 L. R. A. 371 (note); 1 Farnham on Waters. 121: Gould on Waters. §§ 107109. "The true rule is." says the Supreme Court of New York, in Morgan v. King, supra, "that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines or of the tillage of the soil upon its banks. It is not essential to the right that the property, to be transported should be carried in vessels, or in some other mode. whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. Nor is it necessary that the stream should be capable of being thus navigated against its current. as well as in the direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported. Nor is it essential to the easement that the capacity of the stream, as above defined, should be continuous or, in other words, that its ordinary state at all seasons of the year should be such as to make it navigable. If it is ordinarily subject to periodical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement. These general views are in harmony with those maintained by the Supreme Court of Maine in Brown v. Chadbourne, 31 Me. 9, 1 Am. Rep. 641, and by the Supreme Court of Michigan, in Moore v. Sanborne. 1 Gibbs, 519." And this is the rule adopted in this state. In Weise v. Smith, supra, it is said "that if a stream is in fact capable. in its natural condition, of being profitably used for any kind of navigation, its use is to that extent subjected to the general rules of law relating to navigation applicable to the circumstances of the case." And in Haines v. Welch, supra, Mr. Justice Thayer says: "If it [Anthony creek] is capable of serving an important public use as a channel for commerce. it should be considered public: but if it is only a brook, although it might carry down saw logs for a few days during a freshet, it is not, therefore, a public highway." And in Haines v. Hall, supra, in speaking of the same stream, the court said: "Whether the creek in question is navigable or not for the purposes for which the appellant used it depends upon its capacity in a natural state to float logs and timber. and whether its use for that purpose will be an advantage to the public. If its location

is such and its length and capacity so limited that it will only accommodate a few persons, it cannot be considered a navigable stream for any purpose. It must be so situated as to have such length and capacity as will enable it to accommodate the public generally as a means of transportation."

The doctrine then, which we derive from the authorities, is that a stream, to be a public highway for floatage, must be capable, in its natural condition and at the ordinary winter stages of water, of valuable public use, and, if not, it is private property. Ordinary stages of water or natural conditions, within this rule, do not mean a continuous state of floatage or an average volume of water. The term has reference to the natural flow of the water, and is applied to the stream in its natural condition, without the application of artificial means, and is used in contradistinction to extraordinary or unusual floods. That which occurs with reasonable certainty, periodically, can hardly be said to be unusual, and much less extraordinary, and may be properly characterized as ordinary. A stream, therefore, that is capable of floating logs, unaided by artificial means, during freshets or stages of water occurring with reasonable frequency and continuing long enough to make its use of commercial value, is a public highway for that purpose. But a stream which is not such a highway cannot be made one, by the use of dams or other artificial means, without first acquiring the rights of riparian proprietors. 1 Farnham on Waters, § 139. Nor can a stream, navigable in its natural condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No one has a right to store water, and then suddenly release the accumulation, and thus increase the natural volume of the stream, and overflow, injure, or wash the adjoining banks, or otherwise interfere with the rights of riparian owners. The riparian proprietor is entitled to the enjoyment of the natural flow of the stream with no burden or hindrance imposed by artificial means Brewster v. Rogers Co., 169 N. Y. 73, 62 N. E. 164, 58 L. R. A. 495; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184; Witheral v. Booming Co., 68 Mich. 48, 35 N. W. 758, 13 Am. St. Rep. 325; Koopman v. Blodgett, 70 Mich. 610, 38 N. W. 649, 14 Am. St. Rep. 527: Matthews v. Belfast Mfg. Co., 35 Wash. 662, 77 Pac. 1046; Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac. $13. 70 L. R. A. 272. 102 Am. St. Rep. 905; Ford Lumber Co. & Mfg. Co. v. Clark (Ky.) 68 S. W. 445; Ky. Lumber Co. v. Miracle, 101 Ky. 364, 41 S. W. 25: De Camp v. Thomson, 16 App. Div. 528. 44 N. Y. Supp. 1114.

Dams, dikes, embankments, and the like may be constructed in or along floatable streams to facilitate their use (Union Power Co. v. Lichty. 42 Or. 563, 71 Pac. 1044), but not to the extent of injuring the riparian pro