State v. Harding

• Decision Date: 01 December 1919
• Docket Number: 15564.
• Court: Washington Supreme Court
• Parties: STATE v. HARDING.

185 P. 579

108 Wash. 606

STATE v. HARDING.

No. 15564.

Supreme Court of Washington

December 1, 1919

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

James Harding was convicted of unlawfully having in his possession intoxicating liquor, and he appeals. Affirmed.

Walter M. Harvey, of Tacoma, for appellant.

William D. Askren, of Tacoma, for the State.

PARKER J.

The defendant, Harding, was adjudged guilty in the superior court for Pierce county upon an information filed therein against him charging:

'That the said James Harding, in the county of Pierce, in the state of Washington, on or about the first day of February, nineteen hundred and nineteen, then and there being, unlawfully did have in his possession intoxicating liquor, to wit, thirty-eight (38) pints of whisky; he, the said James Harding, then and there not being a regularly ordained clergyman, priest or rabbi. * * *'

Our statute defines the offense of which the defendant was convicted as follows:

'* * * It shall be unlawful for any person other than a regularly ordained clergyman, priest or rabbi actually engaged in ministering to a religious congregation, * * * to have in his possession any intoxicating liquor. * * *' Section 17h, c. 19, page 60, Laws of 1917.

The defendant has appealed to this court.

The principal contention here made in appellant's behalf is that the evidence introduced upon the trial did not support the judgment rendered against him, in that there was not sufficient evidence showing affirmatively that he was not at the time in question a 'clergyman, priest or rabbi.' We shall assume, for present purposes, that such was the condition of the evidence, and that it was not sufficient to support the judgment, if the burden of affirmatively showing appellant to be without the protection of this exception of the statute rested upon the state. While the courts of the several states are not in harmony in their holdings as to the necessity of the state proving affirmatively that an accused is not within such an exception, we think the decided weight of authority is to the effect that the burden of showing that one so accused in such cases is without the protection of such an exception does not rest upon the state, but that, if the accused desire to justify upon the ground that he is exempt from the penalty of the statute under such an exception, it becomes a matter of defense as to which the burden of proof rests upon him. This court, in the early case of State v. Shelton, 16 Wash. 590, 48 P. 258, 49 P 1064, held that the burden of proof, in a prosecution of one accused of selling intoxicating liquor without a license in violation of the statute, was upon him to show that he had a license rendering him immune from prosecution, and not upon the state to prove that he did not have a license, citing Black, Intoxicating Liquors, § 507 and 1 Greenleaf, Evidence, § 79; the court expressing the opinion that such was the weight of authority in this country, though recognizing that the decisions were not harmonious upon the question.

We note that the statute under which the defendant in that case was prosecuted contained the exception in the language of the statute defining the offense, and not in a separately stated exception or proviso; the definition of the offense being found in section 7312, Ballinger's Code, as follows:

'Any person who shall sell or dispose of any spirituous, malt, or other intoxicating liquors without having first obtained a license from the proper authorities shall be deemed guilty of a misdemeanor. * * *'

So that decision seems to be an answer to the contention of counsel for the appellant that the burden of proof in such cases as to such question does not rest upon the accused, when the exception which he invokes for his protection is found in the statutory definition of the offense, or, as sometimes said, in the enacting clause, rather than in a separate exception or proviso. We are quite unable to see that the exception here involved is of any different nature, in so far as we are concerned with the question of the burden of proof, than where there is involved the question of burden of proof as to the accused possessing a license rendering him immune from prosecution. It would seem that the rule, which is sometimes called a rule of necessity, in view of the ease with which an accused person could produce proof of the fact which renders him immune--it being within his own knowledge and involving proof of a negative on the part of the state--has even stronger reasons for its support as applicable to the exception here involved. It seems to us, therefore, that the decision in that case is controlling here, unless we are to overrule it, which we are not inclined to do. The law as there announced has been since adhered to in the following decisions of this court: Kirkland v. Ferry, 45 Wash. 663, 88 P. 1123; State v. McCormick, 56 Wash. 469, 105 P. 1037; State v. Polk, 66 Wash. 411, 119 Pad. 846. See also 8 R. C. L. 173, and editor's note to Bell v. State, 36 L. R. A. (N. S.) 98.

Counsel for appellant call our attention to, and place some reliance upon, our recent decision in State v. Koerner, 103 Wash. 516, 175 P. 175, especially the...