The opinion affirming the judgment herein on a former day of the term disposes of the question raised only with reference to the exception set out in the statute as quoted in the original opinion. In the motion for rehearing it is called to our attention that in disposing of the case the court overlooked one of the reasons why the indictment should have been held vicious. The statute is quoted in the original opinion and it is unnecessary to repeat it. It will be noticed that the proviso contains this language: "Provided the speed limit shall not apply to race courses or speedways." In such case the driver of the machine would not be subjected to the denunciation in the previous portion of the Act. With reference to the exception passed upon and decided in the opinion, we think we were correct, but after a more careful investigation of the matter, in the light of appellant's motion for rehearing, we think the indictment is insufficient in that it does not negative the matter set out in the proviso. If the machine was run upon a race course or speedway, the driver would not be amenable to punishment, because the proviso in the enacting clause exempts from punishment under such circumstances. When an offense is created by statute and there is an exemption in the enacting clause from the denunciation contained in the statute, the indictment, to be valid, must negative that exemption. The reason for this rule is that the exemption constitutes a part of the description or definition of the offense, and unless there is a negative averment no offense is stated. The indictment under such circumstances must show by proper negative averments that the case of the accused is not within the exemption set forth in the statute. The proviso in the statute under discussion exempts from punishment all parties who run machines upon race courses and speedways. The indictment in this case fails to allege that appellant was not running his machine upon a race course or speedway, therefore, it is insufficient to charge the offense denounced by the statute. Everything averred in the indictment could be true and yet appellant not guilty, for if he was running his machine on a race course or speedway there would be not only no penalty attached, but the statute expressly exempts from punishment, under such circumstances, the party from the operation of the law. This matter was overlooked in the original opinion. It will be noted in the statute that there are exceptions contained with reference to certain matters unnecessary here to discuss, but which were discussed in the original opinion. But the proviso contained in the statute exempts from punishment, under the circumstances stated, all parties driving their machines on a race course or speedway. The indictment fails to negative the proviso, and, therefore, is insufficient, and because this was not done, the rehearing is granted, *Page 517 the affirmance set aside, and the judgment is now reversed and the prosecution ordered dismissed.
Reversed and dismissed.