By R. S., c. 160, § 26, all business, traveling and recreation, “works of necessity or charity excepted,” are made offences and punishable by fine.
Where the enacting clause of the statute describes an offence with certain exceptions, it is necessary in a complaint or indictment to state all the circumstances constituting the offence and to negative all the exceptions. State v. Keen, 34 Maine, 500; State v. Adams, 6 N. H. 532.
Upon the trial'of the accused in such case it is not necessary for the government to prove negative averments. The facts constituting the offence being established, it is incumbent upon the defendant, if he relies upon the exceptions of the statute, to bring his case within those exceptions. State v. *93Crowell, 25 Maine, 173; State v. Whittier, 21 Maine, 341. The burthen of exculpatory proof is on him.
In the present case, the fact of traveling on the Sabbath, as defined by R. S., c. 160, § 28, prima facie, made out a violation of the statute by -which such traveling is prohibited. The burthen was on the person so traveling to show that it was a work of charity or necessity. Bosworth v. Swansey, 10 Met. 360. Gregg v. Wyman, 4 Cush. 322. The instructions given were erroneous. Exceptions sustained.
Tenney, C. J., and Rice and Cutting, J. J., concurred. Hathaway, J., concurred in the result.