Dissenting Opinion.
Woods, J.I am constrained to dissent from the conclusion reached by the majority of the court, both as to the definition of the offence, and the manner of charging it. I consider the decision a radical departure from the doctrine often reiterated and heretofore seemingly well settled in this State, that the charging of an offence in the language of the statute which creates it will ordinarily be deemed sufficient. All crimes are statutory in this State, and the importance of the rule is manifest. As early as 1832, in the case of Pelts v. The State, 3 Blackf. 28, the rule was distinctly recognized. It was said:
“Chitty, speaking of indictments upon statutes” (1 Chitt. C. L. 232), “remarks, ‘and not even the fullest description of the offence, were it even in the terms of a legal definition, would be sufficient without keeping close to the expressions of the statute/ In page 237, he further remarks, that ‘ it is in every case advisable to attend, with the greatest nicety, to the words contained in the act, for no others can be so proper to describe the crime; the exceptions if any áre doubtful; and the broad principle which renders a strict adherence essential, is supported by too strong a number of decisions to be shaken/ ”
In the case of The State v. Watson, 5 Blackf. 155, it is said: “ Where an indictment is brought upon a statute which has general prohibitory words in it, it is sufficient to charge the offence generally in the words of the statute.”
In Malone v. The State, 14 Ind. 219, it is said: “The indictment is in the language, substantially, of the statute; and as, under our law, we are to look to the statute alone for the definition of offences, it follows that, as a general rule, it will be sufficient in an indictment or information, to charge them in the language of the statute. * * There are some exceptions to this rule; but it seems that an information for usury is not one of them; for an indictment for usury, in the ‘ *49language of the statute, was held good under former codes, where common law rules governed.
“As an approximation to a test on this subject, perhaps it may be said that, where the statute defines the offence generally, and designates the particular acts constituting it, as, for example, the case of larceny, it is sufficient, in charging the crime, to follow substantially the language of the statute; but where the statute defines the crime generally, without naming the particular acts constituting it, as if a statute makes it a crime to encourage a slave to run away from his master, without defining the act which should be deemed to constitute encouragement, it might be necessary to set out the acts done, that it might appear to the court that they constituted the offence.”
In The State v. Kalb, 14 Ind. 403, it is said: “ The statute prohibits the sale of liquor to a minor. * * We think the offence consists in selling to a minor, not believing, or having reason to believe him to be an adult. Prima facie, the seller would be presumed to know, under the law, whether the person he sold to was a minor or an adult; and, in a case of doubt, he would, if he sold, take the hazard.”
The laws, which from the earliest period in the history of the State have been enacted concerning intoxicating liquors, have defined many offences; as, for instance, sales without license, sales on Sunday, or on other days named, or after certain hours in the day, sales to minors, or to persons in the habit of'getting intoxicated; and notwithstanding the court has uniformly and consistently held that there were implied exceptions to the statutory definitions, which were to be construed as narrower than the general words, yet it has been held, with equal uniformity and consistency, that it was sufficient to charge the offence in the language of the statute, and that it was for the defendant to show, or raise a reasonable doubt on the point, that the sale was within the implied exceptions, and not punishable.
*50If there is any respect in which these cases are not parallel, in principle, with the one under consideration, it has not been pointed out, and I am unable to perceive it. The difference, as it seems to me, is only in the subject-matter of the respective offences. The one law declares the sale of intoxicating liquor unlawful, and the other declares the sale of diseased meat unlawful.
The act which constitutes the offence is defined in each case in general, but in clear and unmistakable words; but, by judicial construction, exceptions are interpolated into each definition.
If there is any reason for saying that under one law the accused must show that the particular sale under investigation was within the exceptions, and under the other law the prosecutor must show that the sale was not within the exceptions, I am not able to perceive it.
Looking outside of the law, and to considerations of public policy, it may be a question whether there are not stronger reasons for imposing on the vender of spoiled meats the burden of showing that the particular sale for which he has been indicted, was made innocently, than for imposing that burden on the seller of intoxicating liquors. There is certainly no reason, either in law or public policy, for imposing upon the former a rule less strict than that which is daily enforced against the latter.
But it is not alone in cases arising under the various laws concerning intoxicating liquors, that this court has held that it is enough to charge the offence in the language of the law which creates it, and that it is incumbent upon the accused to show in defence that the particular act for which he is indicted, though within the letter of the law, is not within its spirit and meaning.
Under an indictment charging, substantially, in the language of the statute, that a supervisor had wilfully and unlawfully failed and neglected to keep a road in repair, it has been held to be matter of defence, not necessary to be negatived in the indictment, that the road was kept in as good repair as the available labor or other means enabled the super*51visor to do. State v. Brown, 8 Blackf. 69; State v. Harsh, 6 Blackf. 346; Tate v. State, 5 Blackf. 73.
So as to garning, permitting gaming in a licensed grocery, and keeping a gaming house, State v. Bougher, 3 Blackf. 307; State v. Dole, 3 Blackf. 294; State v. Maxwell, 5 Blackf. 230; State v. Miller, 5 Blackf. 502; receiving stolen goods, Pelts v. State, supra; disinterment of corpse, State v. McClure, 4 Blackf. 328; kidnapping, State v. McRoberts, 4 Blackf. 178; the failure of a justice of the peace to pay over money, State v. Noel, 5 Blackf. 548; selling spirituous liquors in Vincennes, State v. Graeter, 6 Blackf. 105 and note; see, also, State v. Mullinix, 6 Blackf. 554; State v. Watson, 5 Blackf. 155; fornication — it not being stated in the indictment whether the female was married or unmarried — State v. Gooch, 7 Blackf. 468; provoking an assault, Stuckmyer v. State, 29 Ind. 20; selling foreign merchandise without license, Colson v. State, 7 Blackf. 590; usury, Malone v. State, supra; carrying off growing crops, Johnson v. State, 68 Ind. 43; State v. Allisbach, 69 Ind. 50; assault with intent to murder, Shinn v. State, 68 Ind. 423. These cases furnish strong illustrations of the rule that it is matter of defence, which the accused must bring forward, that his case is an exception to the general words of the statute.
The only authority cited in Moore’s Crim. Law to support the proposition quoted therefrom is the case of Bates v. The State, 31 Ind. 72; and that case, besides being manifestly out of line with the current of decision in this State, is greatly weakened by force of the vigorous dissenting opinion of one of the judges who then composed the court.
It is, of course, true, and it needed no statute to declare it, that the offence charged must be “ stated with such a degree of certainty that the court may pronounce judgment, upon a conviction, according to the right of the case.” But the point in dispute is, what constitutes such a charge? The cases cited, and many others which might be added, hold it sufficient to use the language of the statute. A verdict or plea of guilty to a charge so made means that the case of the defend*52ant does not come within any of the exceptions to the statutory definition, and, upon conviction, the court may, therefore, well adjudge him guilty as charged.
In Bishop on Statutory Crimes, section 358, it is said: “If a statute forbids the sale of milk which is adulterated, or of intoxicating liquor unless the seller has a license, and the words of the statute are general and unqualified, it is plain and sound doctrine that the indictment need not allege, and the prosecuting power need not prove on the trial, the seller’s knowledge of the adulteration in the one case, or the intoxicating quality in the other. The analogies connected with the laAV of the intent sufficiently establish this doctrine. Thus, according to constant practice, the indictment does not allege that the defendant Avas, AAdien he committed the criminal act, of sound mind, or Avas more than seven years old, or was not a married woman acting in the presence and by command of her husband; neither is it customary to produce against the defendant, in the first instance, proof of these things. If they are to appear in the case, they are to be set up by the defendant in his defence.”
From this point the author considers the course of decisions on the subject in Massachusetts, and‘adds: “Now, the true doctrine, as a practitioner might expect it to be held by an intelligent court sitting out of Massachusetts, is this: Mere proof by the defendant, that he did not know of the intoxicating quality of the liquor or of the adulteration of the milk, would not necessarily be adequate in defence; for, if on all the facts, as they should appear from the evidence produced on the one side and on the othei', the jury should be satisfied the defendant was lacking in good faith, or did not care, or was wilfully blind, or Avas negligent in his examinations and inquiries on the question of adulteration or the intoxicating quality, he Avould be responsible, though in a certain sense he was mistaken. And the reason is, that carelessness or negligence, for example, is criminal, as well as the more specific intent to violate the law. But further the general doctrine *53does not go. According, therefore, to the general doctrine, as elsewhere held, and according to sound reason, a prohibition of a thing, in mere unlimited words, no more implies a legislative intention to overturn the principle of the common law that a defendant must be judged by the facts as he honestly believes them to be, than to overturn the principle that, to be responsible, he must be of sound mind.”
This, I think, a key to the true interpretation of the statute under consideration, as well as an accurate statement of the rule of pleading and proof in such cases; and there is, as I conceive, no necessary conflict between these quotations and what is said by the same author in section 628, 1 Bishop Crim. Procedure, quoted in the principal opinion. That section is limited by its language, to statutes, which, though general in their terms, are restricted, by judicial construction, to “aspecific application; ” as, for instance, in the case of The Mary Ann, 8 Wheaton, 380, where general words were used, embracing a whole class of individuals, but were so construed as to embrace only a subdivision of the class, it was held that “ the libel ought to conform to the true sense and meaning.” But the statute under consideration is general, both in its terms and in its application. There may be specific exceptions from its general application, to be judicially declared from time to time, but nevertheless the law is a general one, and not one of “a specific application.”
The same author, summing up in relation to what is a sufficient charge of the offence under such statutes, says:
“ Any one who reads our American decisions in detail, and observes the diverse adjudications made upon the sufficiency of indictments drawn on new and unexpounded statutes, will observe two things: First, that some judges are more ready than others to accept of indictments which merely follow the words of the statute; secondly, that the tendency in modern times is to require an expansion beyond the words in fewer circumstances than formerly would have been demanded. But what partly accounts for both of these facts is, that, in some of *54our States, statutes have expressly permitted wide departures from the common-law rules; while, in other of the States, the departures permissible are less in extent, and less numerous.” 1 Bishop Crim. Procedure, section 630.
Elliott, C. J. — I concur in the opinion of Woods, J.