Nor do we think the ordinance was designed to harass those engaged in the liquor traffic, as an arbitrary, oppressive, or vexatious restriction, for the business can be continued notwithstanding a sale or delivery of intoxicating liquors in "boxes" is forbidden. In discussing this branch of the case, we have not overlooked the fact that the inhibition of the sale of such liquors to be delivered or used in any side room, etc., is not an entire prohibition of the traffic, and hence the ordinance is not in contravention of the charter of Portland; assuming, without deciding, that the power to license, regulate, and restrain the sale of intoxicating liquors does not authorize the passage of an ordinance prohibiting such sales: Black, Intox. Liq. § 227; In re Schneider, 11 Or. 288 (8 Pac. 289); Portland v. Schmidt, 13 Or. 17 (6 Pac. 221); Houck v. Ashland, 40 Or. 117 (66 Pac. 697). 5. It is maintained by plaintiffs' counsel that as the ordinance in question expressly exempts the keepers of hotels from its operation, thereby permitting the serving of intoxicating liquors to their guests in private rooms, but denies such privilege to persons engaged in the business of conducting a saloon or restaurant, it thereby violates Section 20 of Article I of the constitution of this State, by granting to hotel keepers having a valid license to sell intoxicating liquors privileges which upon the same terms are denied to all other persons occupied in similar employments. "An ordinance," says a text-writer, "cannot legally be made which contravenes a common right, unless the power to do so be plainly conferred by legislative grant”: Dillon, Munic. Corp. (3 ed.), § 325. The right to sell intoxicating liquors, however, is not one of the privileges guaranteed to the citizens of the United States by the fourteenth amendment to the federal constitution: Bartemeyer v. Iowa, 85 U. S. (18 Wall.) 129 (21 L. Ed. 929); Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. 273, 31 L. Ed. 205); Kidd v. Pearson, 128 U. S. 1 (9 Sup. Ct. 6, 32 L. Ed. 316). The authority of a State, by proper legislation, to regulate or prohibit the sale of intoxicating liquors, is regarded as a proper exercise of exclusive police power: Cooley, Const. Lim. (7 ed.), p. 849. In White v. Holman, 44 Or. 180 (74 Pac. 933), in commenting upon the clause of our organic law now under consideration, it was said: "It is the danger to the public health, peace, or morals which is imminent or reasonably to be apprehended from the pursuit of any calling that renders the regulation or prohibition thereof by the State an exercise of its police power to avert the threatened peril. The degree of danger to the public is the measure of the remedy which the State may adopt to mitigate or prevent injury to its citizens. If the employment is only incidentally hurtful, it may be regulated by license, but, if it is necessarily pernicious, it may be entirely prohibited. However partial it may seem, the State can create a monopoly of any business that may lawfully be prohibited by it on the grounds of public policy, without violating any constitutional inhibition, because no person possesses an inherent right to engage in any employment, the pursuit of which is necessarily detrimental to the public." The language thus quoted was based on a consideration of the legal principle announced in Plum v. Christie, 103 Ga. 686 (30 S. E. 759, 42 L. R. A. 181), where it was held that a State might create a monopoly in any business in the pursuit of which a person was not authorized to engage as of common right. To the same effect is State ex rel. v. Aiken, 42 S. C. 222 (20 S. E. 221, 26 L. R. A. 345). Mr. Justice FIELD, in Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13, 34 L. Ed. 620), speaking for the court in relation to the police power of a State, says: "There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils." As the selling of intoxicating liquors to be used as a beverage may injure society and impose a burden upon the State, it is uniformly held that no person can engage in that business of common right, as in the sale of necessary commodities; and reason supports the rule that, unless such right exists, the State or its subordinate agent, a municipal corporation, when duly authorized by a sufficient grant of power by the legislative assembly, may confer a privilege on one class of persons which it denies to all others. Hotels are provided with private rooms which are in effect leased to guests, where they can secure lodging, and one of the rules prevailing at such places of entertainment is that persons occupying apartments therein are required to register their names before they are entitled to any accommodation. A man and a woman having possession of or occupying the same bedroom in a hotel generally announce by the public register their marital relation. The persons who go to saloons and to restaurants are not usually required thus publicly to proclaim their visits, and it may have been a knowledge of these methods of keeping a record in one case, and of maintaining secrecy in the other, that induced the council of Portland to exempt hotels from the provisions of the ordinance in question. It is needless, however, to speculate upon the motives that brought about the immunity adverted to, for the city council, having plenary power under the provisions of the charter of Portland, could exempt hotels from the operation of the ordinance in question without violating any constitutional inhibition. Other questions are presented in plaintiffs' brief, but, deeming them either not involved or unimportant, they are not considered. The complaint, in our opinion, did not state facts sufficient to constitute a cause of suit, and, no error having been committed in overruling the demurrer, the judgment is affirmed. AFFIRMED. Argued 29 March, decided 28 April, 1905. STATE. LAUTH. 80 Pac. 660. CRIMINAL LAW-SUDDEN FRENZY NOT INSANITY. 1. A sudden and frenzied paroxysm of anger or jealousy is not insanity in one otherwise in possession of his mental faculties, unaffected by heredity or disease, and does not relieve him from responsibility for crime. JEALOUS RAGE-INSTRUCTIONS AS TO CRIMINAL RESPONSIBILITY. 2. A statement by the trial judge that jealous anger at the conduct of one's mistress is not insanity, and that the difference between the two is quite clear, is not error, particularly where the judge further offered to receive evidence tending to show insanity, or the condition of defendant's mind, together with information that had been communicated to him, and having instructed that the jury had a right to consider the condition of defendant's mind at the time of the homicide, as bearing on the degree of the offense. TRIAL-QUALIFICATION OF JUROR AFTER TRIAL. 3. The conclusion by the trial judge as to the qualifications of a juror, when attacked by a motion for a new trial, or on appeal, will be set aside only when there has been an abuse of discretion. REVIEWING QUALIFICATION OF JURORS AFTER TRIAL. 4. Where, after verdict, the proofs which are produced for and against the qualifications of a juror are conflicting, and of somewhat even balance, the court's conclusions will not be disturbed unless they may result in manifest injustice. DETERMINING QUALIFICATION OF JURORS BEFORE TRIAL. 5. If a venireman should falsely state on his voire dire his interest or position, or should misstate or conceal a material relevant fact, he would be guilty of prejudical misconduct. EXAMPLE OF DISCRETION-QUALIFICATION OF JUROR. 6. On a prosecution for murder, defendant moved for a new trial on the ground that a juror had made false answers, in that he had stated that he had never heard anything about the case. Defendant produced an affidavit that affiant, shortly after the coroner's inquest, met the juror in question, and talked with him, and told him all about the crime; and another affidavit stated that the juror admitted to affiant, in the presence of the one who had made the first affidavit, that the juror had talked with the latter about the case prior to the trial. The affidavit of the juror stated that he had no recollection of having ever talked with any one about the crime, and that he had never admitted that he had done so; and another affidavit, made by the one who made the first-mentioned affidavit, stated that the juror never admitted in his presence that he had ever talked about the case. Held, that it was not an abuse of discretion to deny the new trial. From Clackamas: THOMAS A. MCBRIDE, Judge. Geo. W. Lauth prosecutes this appeal from a sentence of death for killing Mrs. Leonora B. Jones at Oregon City. AFFIRMED. For appellant there was a brief and an oral argument by Mr. Geo. Clayton Brownell and Mr. Grant B. Dimick. For the State there was a brief over the names of Harrison Allen, District Attorney, and C. Schuebel, with an oral argument by Mr. Andrew Murray Crawford, Attorney General, and Mr. Allen. MR. CHIEF JUSTICE WOLVERTON delivered the opinion. The defendant was convicted of murder in the first degree for killing one Leonora B. Jones, his mistress, and adjudged to pay the penalty imposed by statute. He interposed the plea of insanity at the trial, and, with a view to establishing the defense, called Charles R. Noblitt, who related that he was at the depot in Oregon City the night before the killing; that he did not see the defendant there, but saw him a little while afterwards. Thereupon one of the counsel for the defendant stated that he desired to show the actions of the woman when she got off the train, with reference to another man, and that her conduct there was afterwards made known to the defendant, which request the court denied, saying: "I do not think a man can set up, in a case of this kind, jealousy or anger or frenzy caused by jealousy-caused by the fact that a woman had abandoned him. I do not believe it is a good defense. If you can show this man was insane, it is a defense. But I do not think that the law recognizes that the abandonment of a man by his mistress is any legal provocation for taking her life. If you expect to offer any evidence tending to show that he was insane, the court will admit it." Counsel then further stated that the woman came down on the train with certain parties, who were seen by two policemen, which fact was communicated to the defendant, and requested permission to show the subsequent acts of the defendant, answering which the court again ruled as follows: "I want to lay this down as the law: That a frenzy arising from jealousy or anger is not insanity. The difference between them, in law, is as wide as the poles. It is the duty of a man to control his passions, but he cannot control disease. I will admit anything that you can introduce to show the condition of this defendant's mindanything that was communicated to him. As I say, what the fact might be would not be material, but what was communicated to him might be material, with a view of determining what kind of a mind he had." Objections were saved to these rulings and form the basis of the first assignment of error. 1. Insanity, to excuse crime, must be such as dethrones reason and renders the subject incapable of discerning right from wrong, or of understanding or appreciating the extent, nature, consequences, or effect of his wrongful act: State v. Murray, 11 Or. 413 (5 Pac. 55) ; State v. Zorn, 22 Or. 591 (30 Pac. 317). It has been said that "a mere uncontrollable impulse of the mind, coexisting with the full possession of the reasoning powers, will not warrant an acquittal on the ground of insanity; the question for the jury being whether the prisoner, at the time he committed the act, knew the character and nature of the act, and that it was a wrongful one": Regina v. Barton, 3 Cox, C. C., 275, headnote. This appears to be the rule in England, The rule as it obtains in this country is lucidly but concisely |