State v. Fuller , 33 N.H. 259 ( 1856 )

Fowler, J.

This was an indictment for an illegal sale of spirituous liquor, founded on the 5th section of chapter 846 of the Laws of 1849, imposing a penalty of not less than twenty nor more than fifty dollars for such offence. The respondent was found guilty by the jury, and then moved in arrest of judgment for an alleged defect in the indictment. The defect insisted upon is, that the indictment does not aver that the liquor sold was not foreign spirituous liquor, imported under the laws of the United States, and sold by the importer thereof in the original casks or packages in which it was imported. We have carefully considered this objection, and the ingenious argument of the respondent’s counsel in its support, and are entirely satisfied it is untenable.

The language of the statute which forms the basis of the indictment is, “ If any person, not being licensed, shall sell any spirituous liquor or wine, mixed or otherwise, in any quantity, as aforesaid, he shall on conviction be punished,” &c.

It is the well settled general rule of criminal pleading, that all the material facts and circumstances comprised in the definition of the offence, whether by a rule of the common law or by statute, must be stated in the indictment. 1 Archb. Crim. Plead. 85; 2 Hale’s P. C. 183, 184; Hawkins’ P. C., b. 2, c. 25; Cro. Eliz. 147, 201; Bacon’s Abr., Indictment, G; 1 Comyn’s Digest, Indictment, G, 3; Lambert v. People, 9 Cowen 578.

Whether the statute be public or private, the indictment must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it; and must with certainty and precision charge him with having committed or omitted the acts constituting the offence, under the circumstances and with the intent mentioned in the statute. 1 Hale’s P. C. 517, 526, 535; 1 Archb. Crim. Plead. 86, n. 2.

If there be any exceptions contained in the same clause of the act which creates the offence, the indictment must show negatively that the defendant, or the subject of the indictment, does not come within the exceptions. 2 East’s P. C. 275; Spiers v. Parker, 1 T. R. 141; Rex v. Earnshaw, 15 East 456; Rex v. Stone, 1 East 643; 1 Archb. Cr. Plead. 86, n. 2.

But in an indictment on a statute, if an exception or proviso be in a subsequent clause or statute, even though in the same section, it is not necessary to aver that the defendant is not within the benefit of it, for it is in that case a matter of defence for the other party, and need not be negatived in the pleading. 1 Archb. Cr. Plead. 86, n. 2; 2 Hawkins’ P. C., c. 25, s. 113; Rex v. Hall, 1 T. R. 320; Steel v. Smith, 1 B. & Ald. 94; State v. Adams, 6 N. H. 532; Jones v. Axen, 1 Ld. Raymond 119; Rex v. Baxter, 5 T. R. 83; 2 Hawkins’ P. C., c. 25, sec. 112 ; Bac. Abr., Indictment, H, 2 ; State v. Somers, 3 Vt. 156; 1 Chitty’s Plead. 357; Rex v. Ford, Strange 555; Rex v. Bryan, Strange 1101; Sanders’ Case, 1 Sanders 262, n. 1, and authorities.

It is only where the exceptions are so stated in the enacting clause as to qualify the enactment, and thus make the negativing them an essential part of the description of the offence charged, that it is necessary to negative them in the indictment. Wharton’s Am. Cr. Law 191; 2 Hale’s P. C. 170; Rex v. Maurice Jarvis, 1 Burrow 148; Foster’s P. C. 430, Rex v. Bell; Rex v. Stone, 1 East 646, notes; Spiers v. Parker, 1 East 144; Comyn’s Dig., Action, Statute; 1 Chitty’s Plead. 357; State v. Munger, 15 Vt. 290; State v. Godfrey, 11 Shepley 232; State v. Adams, 6 N. H. 532; Com. v. Thurlow, 24 Pick. 374; State v. Webster, 5 Halstead 293; Matthews v. State, 2 Yerger 233 ; State v. Craft, 1 Walker 409; Com. v. Maxwell, 2 Pick. 139; State v. Barker, 18 Vt. 195.

Where negatives are descriptive of the offence, there they must be set forth. Foster, J., in Rex v. Maurice Jarvis, reported in notes, 1 East 648. But the indictment need not negative a proviso which withdraws a case from the operation of the statute, for that is a matter of defence. Wharton’s Am. Cr. Law 191, and authorities ; 1 Archb. Cr. Plead. 86, 3.

Admitting, for the purposes of this case, the correctness of the positions taken by the respondent’s counsel, that the statute of 1849 is a prohibitory one, that by the laws of the United States the prohibition of the sale of foreign liquors by the importer thereof, in the original casks and packages, is forbidden, and that therefore the statute of 1849 is to be understood as subject to a proviso, that its enactments shall not apply to the sale of foreign spirituous liquors or wines, by the importer thereof, in the original casks or packages in which they were imported, still we think it very clear, applying the principles which we have stated as the result of a great mass of authorities, to the matter before us, that the indictment under consideration set forth a complete offence under the statute, and was not deficient in not containing any averment negativing such implied proviso. If it would not have been necessary to negative the proviso, had it been inserted in the statute elsewhere than in the enacting clause, in such mode as to qualify that, and make the negativing it an essential element in the description of the offence, it would seem to be clear that when it is merely implied, and no where expressed, it cannot be necessary to negative it. It would appear absurd to contend that a proviso, not any where expressed, has more force and is more important than it would be if inserted at length in the same or a separate section of the act defining and constituting the offence. It might with equal propriety be contended that it was necessary in every indictment for crime to negative the fact of the respondent’s insanity or idiocy, because all statutes against crime are subject to the implied proviso that the person committing it was, at the time of the perpetration of the offence, in the possession of his reason.

Entertaining these views, the motion in arrest of judgment is overruled, and there must be

Judgment on the verdict.