Reheard June 12, 1919.
Burks, J.,delivered the opinion of the court.
A petition has been filed in this case to rehear the judgment entered January 16, 1919.
[5] No question is involved as to the power of Congress to regulate interstate commerce, but simply whether the accused has brought himself within the act of Congress. Act March 3, 1917, c. 162, sec. 5, 39 Stat. 1069 (U. S. Comp. St. 1918, sec. 8739a). The act of Congress is highly penal in its nature and is to be strictly construed, and in order to bring a case within its purview it must come within both the spirit and letter of the act. There are no such things as constructive crimes. Church of the Holy Trinity v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; Withers v. Commonwealth, 109 Va. 837, 65 S. E. 16.
The act of Congress is in the following words: “Whoever shall order, purchase or cause intoxicating liquors to be transported in interstate commerce, except for scientific. sacramental, medicinal and mechanical purposes, into any State or Territory, the laws of which State or Terri*829tory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be punished as aforesaid” (a fine of not more than $1,000, or imprisonment for not more than six months, or both); “provided, that nothing herein shall authorize the shipment of liquor into any State contrary to the laws of such State; provided further, that the postmaster-general is hereby authorized and directed to make public from time to time in suitable bulletins or public notices the names of States in which it is unlawful to advertise or solicit orders for such liquor.”
[6] Under this act, if a citizen of Maryland who is the owner of a quart of whiskey, which he has owned for years, and which was purchased for his private use, brings it into the State in any way, he violates the State law, but if he uses no instrumentality of interstate commerce and intends to use the whiskey so acquired solely for his personal purposes, he does not violate the federal act. It cannot be said that he ordered, purchased or caused “intoxicating liquors to be transported in interstate commerce.” We have been referred to the Ban Hill Case, decided by the Supreme Court of the United States January 13, 1919, 248 U. S. 420, 39 Sup. Ct. 143, 63 L. Ed. 165, as taking a different view, but the facts were entirely different. There the transportation was by an instrumentality of interstate commerce. Here we are supposing it to be by private means. In that case there were dissenting judges, but in the majority opinion of Mr. Justice Day it is said that “Congress enacted this statute because of its belief that * * * the facilities of interstate commerce should be denied to the introduction of intoxicants by means of interstate commerce, except for the limited purposes permitted in the statute, which have nothing to do with liquor when used as a beverage.” (Italics supplied.) This being a criminal statute, if its object was simply to prohibit the use of the facilities of interstate commerce for the transportation of liquor, it can*830not be extended to private transportations where the “facilities of interstate commerce” are not used, without .straining the language used far beyond what is permissible in a criminal case. The language of the statute is “to be transported in interstate commerce,” which was, in all good reason, held to mean by the use of “the facilities of interstate commerce,” and was not extended to transportation by private means.
[7] Again, the act of Congress excepts from its operation transportation for “scientific, sacramental, medicinal or mechanical purposes.” If the transportation was for any one of these purposes it did not violate the federal statute. * If the petitioner had been indicted under the federal statute, it would have been necessary for the indictment to have negatived the exception, as was done in the Dan Hill Case. There is a difference between an exception to a statute and a proviso annexed to it. The act of Congress contains both. In an indictment under such a statute it is necessary for the indictment to negative the exception, but not the proviso. The rule is well stated in section 199 of Beale’s Criminal Pleading and Practice, for which abundant authority is cited as follows:
[8] “The rule is generally stated in the following form: In case of a statute which contains an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party. The better statement of the rule, however, appears to be, that when the matter of the proviso or exception in the statute, whether it be embraced within what has been termed the enacting clause or not, enters into and becomes- a part of the description of the offefise, or a material qualification of the language which defines or creates the offense, the negative allegation in the indictment is requisite. But *831where it is a subsequent exemption, or occurs in a separate and distinct clause or part of the statute, disconnected with the statutory description of the offense, the negative averment is unnecessary.
* :S * # *
“An indictment for an unlicensed sale of liquor, sales being permitted when licensed, must negative a license; or if permitted for medical purpose, must negative such purpose. An indictment for working on Sunday must negative that it was work of necessity; but not that defendant was excused from the operation of the statute for conscientious ‘reasons. Imprisonment or kidnapping without lawful authority must negative the authority.”
[9] In Commonwealth v. Hill, 5 Gratt. (46 Va.) 682, it was held that what comes by way of a proviso in a statute must be insisted on for the purpose of defense by the party accused, but where exceptions are in the enacting part of the law, it must be charged that the defendant is not within any of them. So in the case at bar, in order to show the applicability of the federal statute, assuming for' the purpose of this case its exclusive character, it was necessary for the defendant, by his pleading, to have shown a state of facts which brought his case within the statute. This he could only have done by pleading substantially what it would have been necessary to have alleged in an indictment in the federal court under the act of Congress. It was not sufficient simply to plead that Congress, by an act approved March 3, 1917, “passed a law regulating the transportation of intoxicating liquors in interstate commerce as follows: section 5 of acts of Congress approved March 3, 1917,” and then give the language of that section. The plea should have gone further and made a proper allegation of the facts, and have alleged that the transportation was not within the exceptions enumerated In the statute. This it failed to do, and for this reason it failed *832to make out a case within the exclusive jurisdiction of Congress, if such act was intended to be exclusive. The plea alleged no fact whatever. It simply stated the existence of a public act of Congress of which this court would have taken judicial notice.
Upon the former bearing, we held the plea of the defendant insufficient, and we now adhere to that conclusion.