On Motion for Rehearing.
Appellant files a lengthy brief showing-much effort, and we have carefully examined the same. The question of the presumption arising from the possession of more than a quart of intoxicating liquor seems in no way involved in the instant case, and we regret our inability to see any application of appellant’s argument and discussion of authorities applicable to that proposition.
The rule that when the exception in a statute is not made a part of the definition of' the offense, but is contained in a separate statute or article thereof, it is not necessary to negative such exception in an indictment charging the offense, has prevailed in this court and others from a time long anterior to the adoption of the Eighteenth Amendment or to the adoption of amended section 20, art. 16, of our state Constitution, and the principle has but been followed by us in. applying it to the indictment herein.
We are not able to follow learned, counsel in their strenuous insistence that the-Legislature was without power to place the-exception in a separate article or section of the statute; it being insisted that it was erroneously so placed because in the amendment as adopted it was set out in the same paragraph. We are cited to no authorities-which by direction or by analogy support such contention. Constitutions announce principles. Statutes apply them. Amended, *759section 20, art. 16, of our Constitution declares that all sales, etc., of intoxicating liquors are prohibited save when same are for medicinal, mechanical, sacramental, or scientific purposes, and said amended section expressly directs that the Legislature shall make laws to enforce this section, and also specifically grants to the Legislature power to’ pass any laws additional to or in aid of the provisions named in the amendment, which the Legislature may deem advisable.
The argument of appellant is interesting, but it hardly seems necessary for us to say that nothing in the placing of the exception in a separate section of the statute interferes with the right of trial by jury, or takes from the accused any of the presumptions arising in all criminal cases under our statutes. If the state by negative averment plead the exceptions, it would not be required to prove such exceptions under all our authorities. Appellant would derive no substantial benefit in the matter of presumptions. If then in any case the burden of proof be upon him who asserts himself within one of the exceptions, what could it profit him whether the exception be or be not negatived in the indictment? Presumptions are creatures of statute solely, and may be given or taken away by the Legislature;, but we deem a discussion of such matters purely dicta.
We have considered as far as we can apply them the arguments of appellant and the authorities cited, but believe the case properly decided in the original opinion, and the motion for rehearing is overruled.