Salt Lake City v. Robinson

• Decision Date: 18 March 1912
• Docket Number: 2266
• Citation: 40 Utah 448,125 P. 657
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. ROBINSON

125 P. 657

40 Utah 448

SALT LAKE CITY v. ROBINSON

No. 2266

Supreme Court of Utah

March 18, 1912

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

L. P Robinson was convicted of selling intoxicants without a license. He appeals.

AFFIRMED.

S. P Armstrong and J. E. Darmer for appellant.

H. J Dininny and P. J. Daly for respondent.

FRICK, C. J. McCARTY, J., concurs. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

The appellant was charged in the criminal division of the city court of Salt Lake City with having sold intoxicating liquors within the city of Salt Lake without obtaining a license to do so. He was convicted in said court, appealed to the district court of Salt Lake County where he was again convicted, and he now presents the record containing the proceedings of his last conviction to this court on appeal.

The only evidence heard at the trial was produced by the city, which is to the effect that one Herman Bauer, who was the private secretary of the chief of police of Salt Lake City, and who was clothed with the powers of an ordinary policeman, and one J. E. Woodward, also a police officer, went into the appellant's drug store in Salt Lake City; that they went there for the express purpose of obtaining evidence that he was selling intoxicating liquors in his place of business; that they knew at the time that appellant had no license from the city to sell such liquors; that they went into appellant's place of business and Mr. Bauer called for lemonade with a "stick" in it and Mr. Woodward asked for a glass of coca cola; that when Mr. Bauer asked appellant to put a "stick" in his lemonade appellant seemed to know just what Mr. Bauer wanted and put whisky in it; that, after drinking the lemonade and coca cola purchased as aforesaid, Mr. Woodward called for and received three bottles of lager beer which appellant produced from a back room in his store; that Mr. Woodward paid appellant one dollar for the drinks and three bottles of beer, including two cigars, and got back twenty cents in change from him; that after having purchased said drinks and the beer, and after having paid therefor as aforesaid, they, as public police officers of Salt Lake City, arrested the appellant and took him and the beer to the police station where a complaint charging him with selling intoxicating liquors without a license was lodged against him, and on which he was subsequently tried and convicted as aforesaid. It was also made to appear upon the cross-examination of the two police officers that, while Mr. Woodward paid for the cigars, the drinks, and the beer out of his own money, he was subsequently reimbursed, but the source from whence the money out of which he was reimbursed was derived was left in doubt. For the purpose of this decision we shall assume that the fund from which Mr. Woodward was reimbursed was the contingent fund of the chief of police of Salt Lake City. The three bottles, two with their contents intact, were produced in evidence. The city did not prove that appellant had not obtained a license to sell intoxicating liquors, although the ordinance prohibiting the sale of such liquors without first obtaining a license from the city was produced in evidence.

Upon substantially the foregoing facts the appellant requested the court to charge the jury to return a verdict of not guilty. This request was based upon the theory that, since the city had failed to prove that appellant did not have a license to sell intoxicating liquors, it had failed to prove that the sale in question was illegal. The court refused the request and in substance charged the jury that the burden of proving that appellant had a license was cast upon him, and in view that he had failed to produce any evidence upon that subject the jury must assume that he had no license authorizing the sale in question. Appellant's counsel vigorously insists that the court erred both in refusing his request and in charging the jury that the burden of proof with regard to whether appellant had a license or not was cast upon him. Counsel has cited some respectable authorities which sustain his contention. The overwhelming weight of modern authority, in the absence of an express statute to the contrary, is, however, in accordance with the rule adopted by the trial court in the instruction complained of.

The author of Black on Intoxicating Liquors, after referring to the decisions which hold that the burden of proving that the sale in question was without a license is upon the prosecution, says:

"But these decisions are exceptional. The rule established by the vast preponderance of authority is that, in cases where a license to sell, if produced and relied on, would constitute a complete defense to the action, the prosecution is not bound to produce any evidence in support of the negative allegation that the sale was made without license, but on the contrary the defendant must assume the burden of proving that he was duly licensed." Black, Intox. Liq., sec. 507.

In a recent work (1910) entitled, "The Law of Intoxicating Liquors by Woolen & Thornton," the authors, in discussing the question of the burden of proof, in volume sec. 947, state the rule in the following language:

"In all cases, therefore, of a sale without a license, the prosecution need not prove it was made without a license, but the burden is upon the defendant to show it was authorized by a license he had at the time the sale was made."

Joyee on Intoxicating Liquors, sec. 686, says:

"Where the possession by the defendant of a license or authorization would be a defense to the act alleged to be criminal upon his part, the burden of proof rests upon him to show that he possesses the same."

In 23 Cyc. 247, the prevailing rule is stated thus:

"In cases where a license to sell is relied on as a defense to the prosecution, the government is not bound to produce any evidence in support of the negative allegation that the sale was made without license, but on the contrary defendant must assume the burden of proving that he was duly licensed."

In support of the foregoing text, decisions from the courts of last resort of twenty-five states, and also decisions from the Supreme Court of the United States, are cited. In a few of the states mentioned, notably Massachusetts, Kansas, and Texas, and perhaps a few others, the subject is regulated by statute. In two of the states a contrary rule had been adopted by the courts, and the legislatures promptly passed statutes fixing the rule in accordance with the great weight of authority. But even in those states the courts conceded that, independent of any statute, the rule was a reasonable and a practicable one. See State v. Crow, 53 Kan. 662, 37 P. 170.

In 17 A. & E. Ency. L. (2 Ed.) 330, the rule is stated in the following language:

"Although there are a few decisions which maintain a contrary doctrine, the rule is settled by the weight of authority that, where a license or permit to sell intoxicating liquors would be a defense to a prosecution for a violation of the liquor laws, the burden is on the defendant to show that he has such license or permit, and not on the state to show that he is without it."

In referring to the rule in 7 Ency. Ev. 726, it is said:

"Where a valid license is a defense to a prosecution, or its nonexistence is an essential element of the crime charged, the rule generally obtains that the burden is upon the defendant to establish the existence of the license."

The author of Underhill on Criminal Evidence, after discussing upon whom rests the burden of proving a negative, at page 33 states the rule as follows:

"But if a fact is peculiarly within the knowledge of the accused, as for example his own age when he pleads nonage as a defense, or the fact that he has a license to carry on a prohibited business or to do a forbidden act, the burden of proof is on him as he has much better means of proving the fact alleged than the prosecution has of proving the contrary. The matter is peculiarly within his knowledge and to require the state to prove the lack of a license is to require proof of a negative allegation."

In 4 Elliott on Evidence, sec. 3170, the author, after showing that the courts are somewhat divided upon the question, says:

"It is now settled, however, in most jurisdictions, either by statute or judicial decision, in the absence of any express statutory provision upon the subject, that the burden is upon the defendant to show his license or authority as a defense."

See, also, Jones on Evidence (2 Ed.), sec. 181; 2 Chamberlayne, Modern Law of Ev., sec. 983.

From the foregoing excerpts it is manifest that the great weight of authority supports the law as it is stated by the trial court in the instruction of which complaint is made. It is also clear that the rule is generally applicable to those cases where an act, especially the sale of some article, is prohibited unless licensed, and where the production of such license would be a complete defense to the prosecution. If the defendant in this case had produced a license to sell intoxicating liquors within the limits of Salt Lake City, the prosecution must have failed, and hence this case falls squarely within the rule announced by the foregoing authorities. Moreover, the rule is as practicable as it is general, and we can conceive of no case where its application could work a hardship or even an inconvenience, much less result in injustice to any one who is engaged in the traffic of intoxicating liquors, whether licensed or unlicensed.

It is however, asserted that we are committed to a contrary principle by what is said in State v. Wells, 35 Utah 400, 100 P. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631, which was a...