State v. Burke

• Decision Date: 28 June 1957
• Docket Number: No. 8474,8474
• Citation: 79 Idaho 205,312 P.2d 806
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rose BURKE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 806

312 P.2d 806

79 Idaho 205

STATE of Idaho, Plaintiff-Respondent, v. Rose BURKE, Defendant-Appellant.

No. 8474.

Supreme Court of Idaho.

June 28, 1957.

Whitla & Knudson, Coeur d'Alene, for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James W. Ingalls, Pros. Atty., Coeur d'Alene, for respondent.

McQUADE, Judge.

On June 24, 1955, a criminal complaint charging appellant with 'acting as a bartender without a permit,' in violation of I.C. sec. 23-922, was originally filed in the Justice Court of Coeur d'Alene Precinct. After trial, without a jury, judgment was entered against the appellant, from which judgment an appeal was taken to the District Court, Kootenai County, Idaho, where trial was again had before the district judge, sitting without a jury, following which a judgment of conviction was entered against appellant, from which judgment this appeal is taken.

The evidence introduced in behalf of the state was very brief. One witness testified that the defendant sold and served him two drinks of alcoholic liquor, and that the defendant served several other persons in his presence during a comparatively short period of time. It was stipulated that the defendant and her husband were the owners of the premises where the alleged offense occurred, and that the place of business was duly and lawfully licensed. After the state had presented its evidence and rested, the defendant moved to dismiss the action upon three separate constitutional grounds and also upon the ground 'that the evidence introduced was not sufficient to sustain a judgment of conviction.'

For specifications of error, the appellant contends the trial court erred (1) in denying appellant's motion to dismiss the action upon the ground that the statute (I.C. sec. 23-922) is unconstitutional as alleged in appellant's motion to dismiss; (2) in denying appellant's motion to dismiss the action upon the ground that the evidence introduced was not sufficient to sustain a judgment of conviction as alleged in appellant's motion; (3) in entering a judgment of conviction against appellant for the reason that it is not supported by the evidence and is contrary to the law. For the purpose of this opinion, specifications of error 2 and 3 will be consolidated.

The first specification of error has been decided in the United States Supreme Court by the case of Goesaert v. Cleary, 1948, 335 U.S. 464, 69 S.Ct. 198, 199, 93 L.Ed. 163, wherein the court stated:

'* * * Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. See the Twenty-First Amendment and Carter v. [Commonwealth of] Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.'

See also 172 A.L.R., annotation, 'Validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold,' p. 620.

As to specifications of error nos. 2 and 3, the basis for such specifications of error is that the state failed to prove the defendant did not have a bartender's permit, and, as such, the conviction cannot stand. The state contends that the matter of the license is an affirmative defense, and this is a burden which the defendant must assume.

The statute under which the criminal complaint was drafted is I.C. sec. 23-922, which reads in part as follows:

'It shall be unlawful for any person to act as a bartender in any premises licensed under the provisions of this act unless such person shall hold a permit therefor from the commissioner. Application for permit shall be made on forms furnished by the commissioner and shall be accompanied by a permit fee of $2.50. No person shall receive a permit as a bartender unless he shall establish to the satisfaction of the commissioner that he:

'1. Is a male person over the age of twenty-one years, * * *.'

In addition to proving the sale of the alcoholic liquor by the defendant, there was also evidence introduced to prove that the defendant was a female. The state then rested, and based its request for a conviction upon the theory the trial court must take judicial notice of the statutes of the State of Idaho, and in doing so would conclude that it was impossible for the defendant to secure a bartender's permit because she is a female. In Rossi v. United States, 289 U.S. 89, 53 S.Ct. 532, 533, 77 L.Ed. 1051, in discussing the facts, the court said:

'It was impossible for the petitioners lawfully to register the still or to give the required bond.'

It was further stated by the court:

'The general principle, and we think the correct one, underlying the foregoing decisions, is that it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by...