Salt Lake City v. Robinson

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 tot 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, — 450 — 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 crossrexamination 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. — 451 — 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 1 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 regal’d to whether appellant had a license or not was east upon him. Counsel has cited some respectable authorities which sustain his contention.. The overwhelming weight of modem 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 2, 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.” — 452 — Joyce 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 Pac. 370. 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.” — 453 — Tire 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. 3110, tbe author, after showing that the courts are somewhat divided upon the -question, sajs: “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, Modem Law of Ev., see. 983. Erom 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 Pac. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. — 454 — 631, which was a prosecution under Comp. Laws 1907, sec. 4226, in which the administering of drugs or the use of instruments for the purpose of producing a, miscarriage - of a pregnant woman except to preserve her life is denounced and made a felony. It is true that in that case we, in harmony with the weight of authority, held that in prosecutions based upon statutes like the one just referred to the state must produce some evidence direct or inferential that the miscarriage was not produced in order to preserve-the life of the woman. While it is also- true that in that case the proposition of proving a negative by the state was to some extent at least involved, yet the question of a license was not involved. If in that case the production of a license by the accused would have been a complete defense to the prosecution or to the act charged, and the overwhelming weight of authority were to the effect that the burden of proof rested on the accused to produce such license, the result of that case, in the judgment of the writer, would have been entirely different. Again, it is asserted that in the ease of Wilkinson v. O. S. L. R. Co., 35 Utah, 110, 99 Pac. 466, we in effect laid down a contrary doctrine to what we are now doing. It is sufficient to say that the principle applied in that case is one of universal application, namely, that where the question of negligence is involved, negligence will not be* presumed but must, be proved. The most that can he said, therefore, is that there appears to he an inconsistency between the rule adopted in this case and the one in the Wells Case. This inconsistency, if not entirely assumed, nevertheless for the reasons already given is more apparent than real. Furthermore, in order to avoid this assumed inconsistency, we are asked to adopt a rule in this state which is contrary to the one that is generally applied by the great majority of the courts in this country and which in practice is found to- he just, fair, and practicable. We do not feel disposed to place this court in opposition to the general trend of authority upon this subject where nothing is accomplished except to reconcile an apparent inconsistency, — 455 — and especially where a rule is sought to be adopted that could benefit no one. We are of the opinion, therefore, that the rule adopted by the trial court should prevail. The next assignment is stated in the following language: “The court erred in holding, that the city is not estopped by its acts in soliciting and procuring the defendant to sell the liquor in question.” Counsel contends that the two police officers to whom the sale was made represented the city that is here prosecuting; that the sale in question would not have been made if the officers had not solicited it; and hence the offense alleged was induced by the officers. It is contended that under such circumstances, the general rule is that 2 the prosecutor is either estopped from asking a conviction or public - policy prevents one. It would subserve no good purpose to discuss the reasons for the rule contended for by counsel, since we are clearly of the opinion that it has no application to the undisputed facts in this case. The alleged offense in question here, namely, the sale of the intoxicating liquor, was not induced or procured in the sense that those terms are generally used and applied. While it may be conceded that the particular sale in question here would not have been made if the two officers had not asked to purchase- the liquor, yet in view of the facts and circumstances the appellant was no more induced to make this sale than he would be induced to-make any sale in his place of business. Moreover, the sale in question was seemingly only one of many that appellant was prepai-ed to make. When the intoxicating liquor was called for by the officers, appellant seemed to have a stock of it on hand from which he could supply any reasonable demand. In case the officers had called for intoxicating liquor and had been informed by appellant that he did not-have it for sale, or that he did not keep it in stock, and in such event they had induced him to obtain some for them from some one else, which he did, and after it was so procured upon their solicitation he had sold them what he had procured, the case would be different. Here, however, the — 456 — sale was freely and voluntarily made from a supply which apparently was on hand in appellant’s store and which could have been kept on hand only for the purpose of making-sales to those who desired 'to purchase. While it is true that, one sale constitutes the offense, yet it is clear that it was not the purpose of the officers to induce the appellant to make a sale for the sole purpose of convicting him of making: that sale, but it seems their object was to obtain evidence-from which it was made manifest that appellant was engaged in the illegal traffic of intoxicating liquors and that they desired to break up such traffic. As public officers-who under their paths were required to enforce the ordinances of the city, we cannot see wherein they offended against public policy or against good morals in seeking to obtain evidence against a willing offender against the law for the purposes aforesaid. No doubt if public officers have-induced or procured a defendant to commit a burglary or-larceny or other offense which he did not intend to commit nor would have committed except for the inducement of such officer, public policy will not justify a conviction for an offense committed under such circumstanes. But suppose it is an offense to carry concealed weapons or to have burglar’s tools in one’s possession and an officer, in order to obtain evidence of the fact, induced the supposed offender to exhibit the weapon or tools to such officer for the purpose aforesaid, is there any public policy that will prevent a conviction of the offender under such circumstances ? We think no one will contend for such a doctrine, and yet the inducement in the case at bar is in principle no different from the inducement in the supposed case of concealed weapons. 'Convictions obtained- under circumstances like those in the ease at bar have frequently, if not universally, been sustained by the courts. The rule under which prosecutions will be sustained is well stated in 2 Woollen & Thornton, Law of Intoxicating Liquors, see. VOT, where a large number of cases are collated in support of the rule there stated. — 457 — We think the true doctrine applicable here is clearly pointed out in a recent case entitled People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370. By what we have said we do not mean to be understood as offering any encouragement to a certain class of so-called private detectives or informers who may, in pursuance of offered rewards, or for other valuable considerations, act as decoys- and as such induce certain individuals to commit offenses. When it is made to appear that the offense charged was induced by a detective or other person, or that such detective or person was paid for obtaining the evidence necessary to convict, or that he is to receive additional compensation in a case of conviction, both the prosecuting officers and the trial courts should carefully scrutinize the evidence and should permit no conviction to be had, or, if had, to stand in case the offense was induced as aforesaid, and in case of paid evidence none should be permitted to stand if there is any doubt of the guilt of the accused. But it does not follow that a conviction is unlawful merely because certain witnesses testifying for the prosecution may have received pay for looking up evidence against the accused. In such case the trial court 3 must be permitted to exercise some discretion with regard to whether a conviction should stand or not. If no legal rights have been invaded and there is no abuse of discretion apparent, we should not interfere-. It is also contended that the court erred in refusing appellant’s request to charge the jury as follows: “The testimony of witnesses who are interested in or employed to find evidence against the accused 4 should be received with the greatest caution and distrust.” We do not think it is the law that merely because one may be “interested ... to find evidence against the accused” his testimony should be “received with the greatest caution and distrust-” Nor d'o we think that the officers who were witnesses in this case come within the class who may be said to have been “employed to find evidence against the accused.” While the courts are not — 458 — unanimous upon, t-his question, it has nevertheless been held that “it is error for the court to charge the jury that the officers were persons hired to obtain evidence and their testimony subject to scrutiny, for they are in no sense detectives, but public officers.” (2 Woollen & Thornton, Law of Intoxicating Liquors, see. 707.) No doubt there are many cases wherein it has been held that? where it was made apparent that the witnesses, or some of them, "are private detectives, or -were paid for obtaining evidence against the accused, their testimony should be received with caution and should be carefully scrutinized, and that it constituted error to refuse to so charge the jury. We know of no case, however, where the court has gone to the extent that counsel ashed the court to go in the request that was refused. We think the law upon this subject is well stated by the Supreme Court of Colorado in the case of O’Grady v. People, 42 Colo. 312, 95 Pac. 346, where, in the headnote, it is said: “The giving of instructions as to the caution to he observed in weighing the testimony of private detectives, or persons employed to find evidence, is based upon rules of practice rather than of law, and rests largely in the discretion of the trial court.” That the trial court should be permitted to exercise at least some discretion with regard to the giving of cautionary instructions is, we think, clearly illustrated by the undisputed facts of this case. Here, so far as the record discloses, were two reputable public officers who produced the evidence of appellant’s transgressions in court and whose testimony was not disputed, not .even questioned, by any one. Everything that took place at the sale as well as the motives and purposes of the officers was detailed by them, and therefore all of the facts relating to their statements were before the jury unquestioned. There were therefore no disputed questions of fact in the case. Under such circumstances, why should the court have given a special cautionary instruction with regard to the weight to be given to the officers’ testi — 459 — mony, to say nothing about giving the one asked for by appellant ? But if it be assumed that it was proper for the court to have given a cautionary instruction,,, or should have given appellant’s request, still the question remains, In what way were any of his legal rights prejudiced by 5 the court’s refusal to give his request ? The evidence was all one way, and no jury, under their oaths, would have been justified to have found the facte otherwise than they found them. True the jury could arbitrarily have found appellant not guilty regardless of the evidence against him, but it cannot be assumed that honest and conscientious men would have done so under any circumstances unless required to do so by a binding instruction. The failure to give appellant’s request, even though it were held error, was therefore error without prejudice. Complaint is also' made that the court erred in refusing to give appellant’s request to the effect that if any one of the jurors ¡entertained a reasonable doubt of guilt they could not convict. The court instructed the jury upon that subject as follows: “You are instructed that, if after due consideration of the whole case and discussion thereof with your fellow jurymen any juror entertains a reasonable doubt of the guilt of defendant, it is the duty of the juror so entertaining such a doubt not to vote for a verdict 6 of guilty nor to be influenced in so voting for the sole reason that other jurors would be in .favor of a verdict of guilty.” The criticism of counsel is aimed at that portion of the instruction in which the jury is told" that a juror should not be influenced in voting for a conviction “for the sole reason that other jurors would be in favor of a verdict of guilty.” In addressing himself to this subject, counsel in his brief says: “The error of the instruction given is in the fact that it permits a juror, though entertaining a reasonable doubt, still to vote guilty because other jurors so vote, provided he may find some additional reason (as that he may believe defendant may be guilty) for so voting.” This seems to us a mere refinement. In fact, the — 460 — point to us seems so nice that although we possessed the powers of Hudibras, of whom it is said that “He could distinguish and divide A hair ’twixt south and southwest side,” we still could offer a reasonable excuse for failing to grasp' the reason why, under the circumstances of this case, the appellant was prejudiced in a legal right by the refusal to give the request. Moreover, an instruction in- effect' precisely like the one given by the court in this case was held to state the law correctly by the Supreme Court of California in People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50. The court therefore committed no- error in refusing appellant’s request. Finally it is urged that the court erred in admitting in evidence an ordinance other than the one upon which the complaint was based. In the complaint it was alleged that appellant had violated the provisions of “section 1 of chapter 24 of the Revised Ordinances of Salt Lake City,” passed April 5, 1909, approved April 7, 1909. It seems that the original complaint was prepared on a printed blank in which the ordinances of the city were designated as the Revised Ordinances, etc. It seems further that the book in which the ordinances appear, which was offered in evidence, was not entitled or designated as the Revised Ordinances, etc. This, however, is the only difference between the ordinances pleaded and the one introduced in evidence. The ordinance introduced in evidence was in fact the ordinance on which the complaint was based and approved as stated in the complaint. Counsel’s contention, therefore, that there was a variance, is, in our judgment, entirely without merit. The judgment is affirmed. Costs to be awarded' against appellant as provided in Salt Lake City v. Robinson, 116 Pac. 448, 35 L. R. A. (N. S.) 610. McCARTY, I., concurs.