State v. Gurney , 37 Me. 149 ( 1853 )

Appleton,-J.

— The indictment in this case follows the language of the statute, and negatives the only exception in the section -upon which it is founded. The sufficiency of the indictment, so far as relates to the statutes of the State by which the enactment was made, will not be questioned.

A motion in arrest of judgment has been filed for the insufficiency of the Indictment. In support of this motion it as urged, that an Importer selling liquors by him imported, In their original packages, may be a common seller; that the defendant may have been such importer; that the sales on account of which he was convicted may have been of liquors in their original packages; that such sales would be lawful by the law of the United States; that in such case all the facts alleged in the indictment would be true, and yet constitute no offence; that therefqre these facts should have been negatived in the indictment, and that judgment should be arrested because they have not been so negatived.

The argument in defence rests upon the position, that sales by an importer, in the original packages, would be against the statute upon which the indictment is framed, and to such extent it wotild be void, as against the laws of the United States. The language of the Act of this State, c. 211, entitled “an Act for the suppression of drinking houses and tippling shops,” approved June 2, 1851, is not more general in its prohibitions, than the several Acts of Massachusetts, New Hampshire and Rhode Island, which received the consideration of the Supreme Court of the United States in the license cases from those States. In reference to those Acts, Taney, C. J., in 5 How. 576, says, “but I do not consider the law of Massachusetts or Rhode Island as interfering with the trade in ardent spirits while the article remains a part of foreign commerce, and in the hands of the importer for sale, in the cask or vessel in which the laws of Congress authorize it to be imported. These State laws act altogether upon the retail or domestic traffic within their respective borders. They act upon the article after it lias passed the line of foreign commerce, and become a part of the general mass of property in the State.” According to the views of Daniel, J., in the same case, “ the license laws of Massachusetts, Rhode Island and New Hampshire, now under review, impose no exaction on foreign commerce. They are laws simply determining the mode in which a particular commodity may be circulated within the respective jurisdictions of those States, vesting in their domestic tribunals a discretion in selecting the agents1 for circulation, without discriminating between the sources- whence commodities may have been derived. They do not restrict importation to any extent; they do not interfere with it, either in appearance or in reality; they do not prohibit sales either by wholesale or retail; they assert only the power of regulating the latter, but this is entirely within the sphere of their peculiar authority.” While, in the opinion of Wood-bury, J., if the object of°theae statutes was to limit or restrict the sale of certain articles as dangerous to health and morals, and as mere police regulations, “ they would appear entirely defensible as a matter of right, though prohibiting sales.” The ground of exception taken to the indictment, must according to the doctrine of the Court, in the case referred to, in any event fail.

But according to the recognized rules of pleading in criminal procedure, the indictment must be sustained. When there is an exception in the' enacting clause it must be negatived in the indictment, for otherwise no violation of law will appear. The case provided for, in the clause pleaded, is not made out on the record. But when the exception or proviso is in a subsequent enacting clause, the case provided for in the enacting clause may be fully stated without negativing the subsequent exception or proviso. A prima fade case is stated, and it is for the party for whom matter of excuse is furnished by the statute, to bring it forward in his defence. Com. v. Hart, 6 Law Rep. N. S., 77.

It is equally well settled, that when an exception arises from another statute, the party claiming under it must plead it. “ It is enough for the prosecutor to bring the case within the general purview of the statute upon which the indictment is founded, if that statute has general prohibitory words in it. For when 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. And if a subsequent statute, or even a clause of exception in the same statute excuses persons under such and such circumstances, or gives license to persons so and so qualified, so as to excuse or except out of the general probibitory words, that must come by way of plea or evidence. Rex v. Pemberton, 2 Bur. 1036.

An indictment in tbe State courts regards only tbe law of the State against which the offence is committed. The statutes or law of the State which creates- the offence, and imposes the penalty, are alone to be regarded in forming tbe indictment. It would be a novel doctrine to require that a defence arising from treaties with, or under the statutes of another government, were required to be negatived in an indictment for an offence against the laws of this State. A prima facie ca-se is stated, and if the defendant relies upon the fact, that be was an importer, and that the sales were of spirits in their original packages, he should have offered it in evidence by way of defence. Com. v. Hartf 6 Law Rep. N. S. 77.

Motion overruled. Judgment on the verdict.

Shepley, C. J., and Tenney, Howard- and Wells, J. J.,. concurred.