State v. Garde, 7418
| Decision Date | 18 April 1949 |
| Docket Number | 7418 |
| Citation | 69 Idaho 209,205 P.2d 504 |
| Parties | STATE v. GARDE |
| Court | Idaho Supreme Court |
Appeal from District Court, Seventh Judicial District, Canyon County; Thomas E. Buckner, Judge.
Judgment modified by vacating sentence for a felony and cause remanded with directions to impose sentence for a misdemeanor.
Milo Axelsen and V. K. Jeppesen, both of Nampa, for appellant.
The sale of whiskey by the bottle is forbidden to licensees and other persons; yet the construction placed on the 1947 law by the prosecution would require punishment of a licensee for a misdemeanor and punishment of another person for a felony even though the acts charged against both were exactly the same, thus making the 1947 act unconstitutional under Section I of Article XIV of the United States Constitution and also Article III, Section 19, Idaho State Constitution. Chapter 274 -- 1947 Session Laws; Chapter 222 -- 1939 Session Laws; Section 902 -- Chapter 222 -- 1939 Session Laws; In re Mallon, 16 Idaho 737, 102 P. 374, 22 L.R.A.,N.S., 1123; Crom v. Frahm, 33 Idaho 314, 193 P. 1013; State v. Johnsey, Okl.Cr.App., 287 P. 729; State v Holland, 37 Mont. 393, 96 P. 719; Acme Finance Co. v Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345.
Robert E. Smylie, Atty. Gen., J. R. Smead, Assistant Atty. Gen., of Boise, and W. W. Wander, Prosecuting Atty., of Nampa, for respondent.
A law that applies alike to all persons in like situation does not deny equal protection or effect an arbitrary classification. 30 Am.Jur. 302, Sec. 86; State v. Calloway, 11 Idaho 719, 733-734, 84 P. 27, 4 L.R.A.,N.S., 109, 114 Am.St.Rep 285; Village of St. Anthony v. Brandon, 10 Idaho 205, 212-213, 77 P. 322.
Section 35 of Chapter 274, Laws 1947, as well as other provisions, was intended to take effect at once, in order to stop illegal traffic in liquor then going on. Sec. 1, Ch. 274, Laws 1947; Sec. 38, Ch. 274, Laws 1947.
And being the latest statute on that subject was and is controlling. Lloyd Corp. v. Bannock Co., 33 Idaho 478, 25 P.2d 217; Herrick v. Gallet, 35 Idaho 13, 204 P. 477.
The Prosecuting Attorney's Information charging the defendant with the crime for which he was convicted, was, in part, as follows: ". . . . that Arthur D. Garde (at a certain time and place), then and there being, did then and there willfully, unlawfully and feloniously sell a bottle of liquor, to-wit: whiskey, for the sum of $ 7.00, to one R. C. Rosson, the said Arthur D. Garde not having a license as provided in Chapter 274, Idaho Session Laws, 1947 . . . .".
The jury found the defendant "guilty of the crime of illegal sale of liquor, as charged in the information." Said verdict was filed on November 21, 1947; and on November 24, 1947, the defendant was duly sentenced to serve a term in the Idaho State Penitentiary of "not more than five (5) years." The defendant moved for a new trial, which was denied.
The defendant appealed from the judgment and the order denying his motion for a new trial.
All of the assignments have been duly considered; but in view of the conclusion of the court no useful purpose would be served by a discussion of such assignments.
The evidence offered by the plaintiff established a sale of a bottle of whiskey to an investigator, employed by the law enforcement department, in the presence of another officer and some friends. The appellant denied the sale, even denied his presence at the site of sale at the time testified to by the officers, and, of course, offered no evidence as to the circumstances surrounding the alleged sale. Appellant contended that the testimony of the plaintiff's witnesses established entrapment and accordingly requested instructions on that defense. The evidence on behalf of the plaintiff disclosed that the appellant was given the opportunity either to make a sale or refuse to do so and that he chose to sell. There was no entrapment and the requested instructions were properly refused, State v. Webster, 46 Idaho 798, 271 P. 578, and authorities therein cited.
Chapter 274 of the Acts of the 1947 Session of the Legislature (1947 Laws, p. 870) established procedure antecedent to the issuance of and provided for the ultimate issuance of licenses authorizing the sale of intoxicating liquor by-the-drink in municipalities and on railroad trains and boats. Section 17 prohibited the issuance of any license until on or after July 1, 1947. Section 35 makes it a felony, punishable as therein provided, for any person to sell or keep for sale any intoxicating liquor "without a license as provided in this Act".
Appellant contends that since licenses could not have been issued before July 1, 1947, the act did not become wholly operative, the felony of selling liquor without license did not exist and could not have been committed before that date and that on June 18, 1947, all sales of liquor by individuals, while unlawful, constituted misdemeanors only. Respondent, in answer, states in its brief: . Obviously, it is respondent's position that the legislature made all persons who sold intoxicating liquor between March 19, 1947, and July 1, of the same year, and those who, after the latter date, sold without license guilty of felony.
The 1939 Session of the Legislature by Chapter 222 of its Acts (1939 Laws, p. 465) adopted a rather comprehensive plan for the regulation and control of the distribution of intoxicating liquors. It provided for the sale by the state, to permit holders, at state-owned stores and dispensaries, of bottled liquors not to be consumed upon the premises. The act contained many provisions, including Section 902, continuing the prohibition against all sales by individuals, making it unlawful for any person to sell and subjecting the offender to prosecution for a misdemeanor.
The 1947 Session of the Legislature by Chapter 274 of its Acts (1947 Laws, p. 870), passed and on March 19, 1947, the Governor approved, an act expressly designed further to regulate and control the sale and distribution of intoxicating liquors in the State and to eliminate certain illegal traffic then existing. The act did not expressly repeal any earlier act. But it did modify the 1939 Act by making it a felony for "any person who sells or keeps for sale any liquor without a license as provided in this Act * * *". (Emphasis supplied.) Chap. 274 Sess.L.1947. The plan was entirely new. No statutory provision then existed authorizing or legalizing any sale of alcoholic liquor by-the-drink. Since electors in municipalities were to have the right to reject (Section 17 et seq.), immediate authority to sell throughout the state or even in any part of it was not contemplated. Many things were to be done before sales could legally be made anywhere. It...
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State v. Segovia, 10266
...197 P. 824 (1921); State v. Chacon, 37 Idaho 442, 216 P. 725 (1923); State v. Webster, 46 Idaho 798, 271 P. 578 (1928); State v. Garde, 69 Idaho 209, 205 P.2d 504 (1949.) It is our conclusion that none of the errors assigned by appellant require reversal and the judgment of the trial court ......
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Howard v. Felton
...Such was the law of this state as early as 1928. State v. Webster, 46 Idaho 798, 271 P. 578; followed in 1949 in State v. Garde, 69 Idaho 209, 205 P.2d 504; and recently in State v. Whitlock, 82 Idaho 540, 356 P.2d Admittedly, the question of entrapment is not directly involved in this case......
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State v. Teninty, 7562
... ... Humphreys v. State, 28 Ala.App. 307, 183 So. 685; ... State v. Wilson, 227 N.C. 43, 40 S.E.2d 449; ... State v. Garde, 69 Idaho 209, 205 P.2d 504; ... Ballantine's Law Dictionary, 769, under head "Local ... Section ... 35, Chapter 274, Session Laws of ... ...
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State v. Barton
...that this Court implicitly recognized that the entrapment defense may be utilized where the defendant asserts his innocence. 69 Idaho 209, 205 P.2d 504 (1949). In Garde , the defendant was charged with, and found guilty of, the unlawful sale of alcohol. Id. at 211, 205 P.2d at 504–05. At tr......