The opinion of the court was delivered by
Bennett, J.This case comes before the court upon exceptions taken on trial, and also upon exceptions to the decision of the county court in overruling the motion in arrest. The only question, with which the court have found any difficulty, relates to the sufficiency of the complaint; but as we are all agreed, that the complaint is bad, it is of no importance to pass upon any other questions in the case.
The complaint charges the respondent with the exercise of secular business upon the sabbath, without negating that the business was a work of necessity, or charity. The rule of law is, that, "when the exception is in the body of the statute, which enacts the offence, and enters into it as a part of its description, it becomes necessary to state all the facts, which constitute the offence; and to do this, the exception in such case must be negatived. The authorities cited in argument fully sustain this position. If the exception is distinct from the enacting clause, it then becomes matter of defence, and it need not be negatived in the indictment, that the respondent is within the exception. State v. Butler, 17 Vt. 149. The reason why the rule is different in the two cases is quite obvious.
The statute (Rev. St. 394) prohibits any one from exercising, on the sabbath, “ any secular labor, business or employment, except *198such only as works of necessity and charity." It is necessary, then, in order to constitute a violation of this statute, that the work complained of should not be a work of necessity, or charity ; and the effect is the same, as if the exception in the statute had been in this form, not being works of necessity and charity. It would then be quite apparent, that the latter words would qualify and explain what kind of labor, business and employment was prohibited.
It has, it is true, been held, that an indictment for not going to church need not aver, that the respondent had no reasonable excuse for his absence, though the words of the statute are, “ haying no reasonable excuse.” 1 Chit. Cr. Law 283, 284. In such a case, if the respondent has a reasonable excuse, it is matter of exemption, and the respondent must avail himself of it, — that is, he must show that he comes within the exception. The fact, whether the respondent has a reasonable excuse, must be peculiarly within his own knowledge. The Massachusetts statute of 1791 provides, in the enacting part, that no innholder, &c., shall entertain any persons, not being travelers, strangers■, or lodgers on the Lord’s day, under a given penalty for each person entertained; and it was held, that the indictment must negative their being travelers, &c. Commonwealth v. Maxwell, 2 Pick. 139. This statute is in effect like the one, upon which the present complaint is grounded.
The result is, the judgment of the county court is reversed and sentence arrested for insufficiency of the complaint.