Opinion by
Mr. Chief Justice Moore.The defendant was convicted of the crime of selling alcoholic drinks in violation of the provisions of the local option law, and appeals from the judgment which followed; his counsel contending that an error was committed in overruling a demurrer to the indictment, based on the ground, inter alia, that the facts stated therein did not constitute a crime.
1. The formal parts of the charge are as follows:
“The said A1 Emmons did on the 20th day of December, 1908, in the county of Wallowa and State of Oregon, then and there being, wrongfully and unlawfully sell, barter, and give away to one Guy Harris intoxicating liquors, *354to-wit, one pint of intoxicating liquor, with intention to evade, and contrary to the provisions of, an order of prohibition, duly made and entered by the county court of Wallowa County, State of Oregon, on the 15th day of June, A. D. 1906, which said order then and there prohibited the sale of intoxicating liquors in the whole of said county, and which said order ever since has been and still is in force and effect in the Avhole of said county; and all contrary to the statutes in.such cases made 'and provided, and against the peace and dignity of the State of Oregon.”
The local option law prescribes the method of securing its adoption in a county, in a subdivision thereof, or in a precinct therein, and provides that at the time the enactment becomes operative “any person Avho shall thereafter, within the prescribed bounds of prohibition, sell, exchange, or give away, with a purpose of evading the provisions of this law, any intoxicating liquors whatsoever, or in any way violate the provisions of this law, shall be subject to prosecution,” etc. Laws Oregon 1905, p. 48, c. 2, §15. Although the language last quoted is somewhat doubtful, a fair construction thereof' leads to the conclusion that an intent to evade the provisions of the local option law is an ingredient of the crime in the case of a gift of intoxicating liquor, and that in all other instances a purpose of evading the provisions of such law is not essential to a conviction for a violation thereof. It may be considered in some sections of the State to be a moral wrong for a person within the prescribed bounds of prohibition to give an acquaintance a drink of intoxicating liquor, or to invite him to the home of such person where wine or beer is served, but it is not believed that in the language of our statute such gifts of alcoholic drinks were intended to be interdicted by the local option law. Black, Intoxicating Liquor, § 407. Where, however, an article of trivial value is sold for a sum of money equal to that usually received for a glass or a bottle of intoxicating liquor, and such drink is also supplied to the purchaser as a part of the transaction, under the pretense of donation, *355or any other subterfuge, the simulated gift is equivalent to a' sale and clearly made “with a purpose of evading the provisions of this law,” and therefore violative thereof. United State v. Dodge, (Deady), 186, 188, Fed. Cas. No. 14,974. Under the provisions of Section 15 of the local option law, when a person is charged with the crime of giving away intoxicating liquor within the bounds of prohibition, the indictment must aver that such donation was made “with a purpose of evading the provisions of this law,” as adopted and in force at the time of such gift, in a county,- in a subdivision thereof, or in a precinct therein, and this, being so, it remains to be seen whether or not the formal accusation in the case at bar is sufficient in this respect. The fundamental law of the State enacts that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. Const. Or. Art. I, § 11. The statute passed in pursuance of such requirement provides that the indictment must be direct and certain as it regards the crime charged and the particular circumstances thereof, when they are necessary to constitute a complete offense. Section 1806, B. & C. Comp.
A text-writer in speaking of a formal accusation, says: “An indictment for an offense against a statute must by the ancient rules of pleading with precision and certainty charge the defendant to have committed or omitted the acts, under the circumstances and with the intent mentioned in the statute; and, if any of these ingredients be omitted, the defendant may demur and move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict, nor be cured by the formal conclusion that the defendant’s acts are contra formara statuti.” Sedgwick, Statutes and Constitutional Law, 115. In State v. Malloy, 34 N. J. Law, 410, 413, Mr. Justice Scud-der, referring to the language last ¡adduced, says: “This is but a repetition and summary of what will be found in all the books”; citing many authorities. So, too, in State *356v. Freeman, 6 Blackf. (Ind.) 248, in a prosecution for unlawfully selling spirituous liquors, it was held that, when an evil intent accompanying an act is made by statute necessary to constitute the commission of such a crime, the intent must be alleged in the indictment and proved as stated. The local option law, it is true, is in the nature of an enabling act, authorizing the qualified electors of a certain territory, by a majority vote in favor of prohibition, cast at an election duly called and held for that purpose, to appropriate the provision of the act to such locality and to make it effective therein, which fact is evidenced by the order of the county court, declaring the result of such vote and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, which order is made prima facie evidence of the regularity of the proceedings. Section 10 of the local option law.
2. It is difficult to understand how. a person in one disposal of alcoholic beverage could “sell, barter, and give away * * intoxicating liquors”; but, as the rules of criminal pleading adopted in this State sanction such practice in the statement of a statutory offense, the averment in that form was permissible. State v. Carr, 6 Or. 133, 134; State v. Bergman, 6 Or. 341, 344; State v. Dale, 8 Or. 229, 231; State v. Humphreys, 43 Or. 44, 47 (70 Pac. 824.)
3. As the local option statute makes the giving away of intoxicating liquor, “with a purpose of evading the provision of this law” an offense, an averment of an intention to evade “the order of prohibition duly made and entered by the county court of Wallowa Countyj” etc., is not tantamount to an allegation of a disposal of such alcoholic beverages with a purpose of evading the provisions of the local option law, for the order evidencing the application of the law to a particular territory cannot be classed as the law itself, and, such being the case, an error was committed in overruling the demurrer.
The judgment is therefore reversed, and the cause remanded for the purpose of initiating a new trial.
Reversed.
Decided January 25, 1910. [106 Pac. 451.]