The complaint is for a violation of chapter 78 of the Revised Statutes of 1857, and alleges that the defendant "did sell and suffer to be sold, and not for the purpose of exportation, ale, wine, rum, and other strong and malt liquors, and mixed liquors, a part of which was ale, wine, rum, and other strong and malt liquors, without license first had and obtained," c., "against the statute," c. Section 1 of chapter 78 prohibits the manufacture or sale of these articles except for exportation, "unless as is hereinafter provided." Section 16 prescribes the penalty. Section 14 provides that it shall be lawful for town agents to sell liquors mentioned in the first section of said chapter, and for all persons to keep and sell liquors imported and contained in the original packages in which such liquors were imported, c.
In framing pleadings in criminal cases there seems to have been formerly a distinction between indictments and proceedings on penal statutes where the convictions are summary. In the latter case the defendant has not the advantage which a trial at common law gives him, and therefore more strictness is required in order that it should appear on the face of the papers that the magistrate has jurisdiction and that the defendant has no statutable defence. I Chitty's Crim. Law, pp. 283, 284; Rex v.Jarvis, *Page 475 1 Burr. 148; Rex v. Pemberton, 2 Burr. 1035; Rex v.Stone, 1 East, 649; Rex v. Marriott, 1 Str. 67; 2 Chitty's Gen. Prac. 166, 167.
Declarations in suits for penalties were strictly construed, and it was held that they must negative all exceptions if in same clause. 1 Chitty, 255, note, 506; Smith v. United States, 1 Gall. 261; Donelly v. Vandenbergh, 3 Johns. 41; Spiers v.Parker, 1 T.R. 144.
But in regard to indictments we find among the old authorities that Hawkins, P.C. b. 2, c. 25, § 113, a standard authority, says: "It seems agreed that there is no need to allege in an indictment that the defendant is not within the benefit of the provisos of a statute whereon it is founded; and this hath been adjudged even as to those statutes which, in their purview, expressly take notice of the provisos, as by saying that none shall do the thing prohibited otherwise than in such special cases, c., as are expressed in the act," citing Poph. 93, 94; 1 Jones, 157; 1 Lev. 26; Savile, 32; 2 H.P.C. 170, 171.
Again he says, section 112, that "every indictment must bring the defendant within all descriptions mentioned in the act, except they are such as carry with them the bare denial of a matter the affirmation of which is a proper and natural plea for the defendant." On a statute punishing a man for non-attendance on church without reasonable excuse, it was not necessary to show that the defendant had no reasonable excuse, that being on him to show. He cites 2 Leon. 5; 2 Keb. 582. And all the above is repeated as sound law in 3 Bacon's Abr. Indictment, H.
It is said, however, in an article in the American Jurist for October, 1832 (vol. 8), p. 237, attributed to Judge Metcalf, that these doctrines in Hawkins and Bacon are founded on cases where that course of proceeding depended on statute. And the modern cases seem to have established a different doctrine.
Chitty (2 Gen. Practice, 166, 167) has laid down a rule which seems to be supported by many of the modern authorities: "If the exception be in the enacting clause, or in a proviso thereof, oreven in any other clause that ought to be read as part thereof, although in a distinct section, then it must be negatived. But if in a subsequent clause and not referred to, then it need not be negatived." And so Bayley, J., in Steel v. Smith, 1 B. Ald. 94; *Page 476 and so Lord Tenterden in Vavasour v. Ormrod, 6 B. C. 430, which was a suit on a lease.
The whole tendency of modern cases has been to make the rule for indictments and declarations in civil cases uniform with the old rule strictly observed in cases of summary convictions and suits for penalties. See Lequat v. People, 11 Ill. 330, andMetzker v. The People, 14 Ill. 101, where the rule is laid down substantially as by Chitty. The question is whether the exception is incorporated in the enacting clause by words of reference. These cases are cited and recognized in State v.Williams, 20 Iowa, 98; and in State v. Palmer, 18 Vt. 570, this rule is spoken of as plausible, but is not decided. And see Broom's Legal Maxims, § 521. "Verba relata hoc maxime operanturper referentiam ut in eis inesse videntur." And see note in 2 Ben. H. Lead. Cas. (2d ed.) p. 13.
Much confusion has been caused by using the phrases "enacting clauses," "purview," "proviso," and "exception," in different senses. Ben. H. Lead. Cas. note, ante; Smith v. Moore, 6 Greenl. 274.
The case of State v. Abbey, 29 Vt. 60, contains the most sensible remarks on these rules that we have seen. "The rule is founded on the general principle, that the indictment must contain the statement of those facts which constitute an offence under the statute." A prima facie case must be stated, and matter of excuse must be shown by the defendant. "The question is, whether the exception is so incorporated with and becomes a part of the enactment as to constitute a part of the definition or description of the offence." It is the nature of the exception and not its location which is important.
And in the case of State v. Adams, 6 N.H. 532, it is suggested that we may ask whether all that is alleged in the indictment may be true, and yet the defendant not be guilty. The answer to this question will decide what ought to be alleged in order to constitute the statute offence. And the Supreme Court of South Carolina, in a case where the charge was insufficiently stated, observe, "As that [card playing] is not under all circumstances unlawful, she may, for anything that the court can perceive, be innocent of any offence." State v. Reynolds, 2 Nott McC. 365. *Page 477
The complaint in the present case does allege a sale "without license," although the provision for license is not contained in the enacting clause, or even in any part of the act, but in a subsequent statute. Upon the principles we have approved the exceptions must be sustained.
New trial granted.