It is true that, in many cases, where an indictment is found for a statutory offense, it must negative any exceptions made in tbe statute. Tbe reason of this is evident. Tbe absence of those facts which are excepted by tbe statute, goes to make of tbe act done a criminal *634offense. For instance, if one were indicted for selling liquor without having a license, it is the fact that he has no license which makes an offense of the act of sale.
But, in the present case, the words of exception in the statute, “not adjoining to or within -the curtilage,” etc., do not go to con stitute the act of burning a criminal offense. They are intended only to except from the statute a class of acts which were already, by another statute, an offense of a higher degree. That statute had made it a crime to burn in the night-time any store or warehouse, even though it were not adjoining to or within the curtilage, etc. By the two statutes any setting fire in the night-time to a store or warehouse is a crime. If the store or warehouse be adjoining to or within the curtilage, etc., the crime is of a greater, if not, then of a less degree.
We think, therefore, that the judgment should be reversed and the people should have judgment on the demurrer and motion to quash, with leave to the defendant to plead to the indictment, and the case should be remitted to the Court of Sessions.
Present — Learned, P. J., Bookes and Boardman, JJ.Order quashing indictment and judgment on demurrer reversed defendant in error to be allowed to plead to indictment; case remitted to Court of Sessions.