dissenting:
I respectfully dissent.
In my opinion, the majority misinterprets 1967 Perm. Supp., C.R.S. 1963, 40-4-31 (now section 18-9-305(1), C.R.S. 1973). That statute provides:
“* * * [A]ny person [may use] wiretapping or eavesdropping devices on his own premises for security or business purposes if reasonable notice of the use of such devices is given to the public.”
The district court instructed the jury that the burden of providing reasonable notice to the public could be placed on defendant, who was employed by the-owner to install the wiretaps.
*550The majority, while admitting that “the statute does not specifically designate who is to give notice,” asserts that defendant bore the burden of proving the affirmative defense that notice was given. 1 disagree with this construction of the statute.
It is apparent that the legislature intended that the owner of the premises would be exempt from criminal responsibility for the installation of wiretaps on his own property for security or business purposes. In this situation, otherwise forbidden conduct would become lawful provided the owner gives the required notice to the public. Had it been intended that the mechanic or technician employed to physically make the wiretap (for this lawful purpose) be required to give public notice thereof, the legislature would have so spoken.
The better reading of section 18-9-305(1), in my view, would place the burden of giving notice on the person on whose premises and for whose security or business purposes the wiretap is installed. This construction avoids imposing criminal liability on an accused for failing to get where the statute does not command that he act. In contrast, the majority interprets an admittedly ambiguous statute against a defendant, in violation of fundamental principles of due process.
I am authorized to state that MR. JUSTICE CARRIGAN joins in this dissent.