Vance v. State

RUSSELL, Judge.

OPINION

This is an appeal by Paul Eugene Vance from his convictions for professional gambling in violation of T.C.A. § 39-2032; maintaining a gambling premise in violation of T.C.A. § 39-2036(4); and encouraging, promoting, or exhibiting a gambling table or device in violation of T.C.A. § 39-2002. Jail sentences for the latter convictions were ordered served concurrently with the two to three years in the penitentiary fixed for professional gambling; and $1,000 fines were levied in each case.

Vance was unquestionably and admittedly operating a storefront gambling premise in Memphis. His effort at a defense was based upon his contention that the operation was church operated. The brief and argument presented in his behalf upon this appeal consists of only two sentences (aside from the statement of the assignments of error and the statement of the case), wherein it is said that the general gaming statutes of Tennessee do not apply to religious groups operating bingo games, lotteries or similar games of chance, and that the device for which the defendant was indicted was a lottery. (The three assignments of error contend that the evidence preponderated against the verdict, that the game of chance conducted by Vance was legal because pursued by a religious organization, and that the sales tax exemption certificate of the Christian Church of Faith should have been admitted into evidence.)

This case boils down to the fact that Vance claims an affirmative defense to operating a gambling house; that is, that it was church operated. It is unnecessary for us to examine the evidence on this point with strictness, because Vance has utterly failed to present any evidence that would qualify his operation for exemption as that of a religious or charitable group under that provision of the law, T.C.A. § 39-2033(8), which grants such institutions exemption only “if no part of the gross receipts derived from such activity inures to the benefit of any private shareholder, member or employee of such organization and if no part of the gross receipts derived from such activity is used for any other than benevolent, charitable or religious purposes or for the purpose of constructing, maintaining of renting a building to be occupied by such organization”. As the State points out in its brief, there is no such showing in this case. While Vance presented evidence that his was a church operation, engaging also in some charity, no evidence was presented tending to show that no person benefitted individually or that all of the gross receipts were used for benevolent, charitable or religious purposes.

The law in Tennessee is that where certain categories of activities similar to the acts which constitute a crime are exempted from criminal liability by an independent section of the act defining the particular crime, it is up to the defendant to bring himself within the exemption. Villines v. State, 96 Tenn. 141, 33 S.W. 922 (1896). This is in accord with other jurisdictions. This language appears in Wharton’s Criminal Evidence, 13th Edition, Vol. 1, § 20:

As a general rule, the defendant must prove that he is within the operation of an exception to a penal statute in order to take advantage of it.

* * * * * *

An exception which is not located in the enacting clause of a statute is treated as a matter of defense in the ordinary case; but an exception found in the enacting clause is regarded as a matter of defense only when the evidence concerning it is peculiarly within the knowledge or at the disposal of the defendant, or, according to a few authorities, only when the statute is interpreted as making the exceptive circumstances an excuse or justification for the defendant’s conduct in such a way as to regard it only as defensive matter. Thus, a number of courts have held that the prosecutor’s case is supported in the first instance by eviof the facts properly stated in the charge, i. e., those facts necessary to bring the defendant under the general prohibition of the enacting clause. The prosecutor need not negative, by proof in advance, exceptions not found in that clause.

* * * * * *

When the enacting clause contains a general prohibition intended by the legislature as describing prima facie the conduct proscribed, and hence the phrase referring to other provisions of the statute is disregarded in the prosecution’s charge, the burden is on the defendant to offer evidence of the exceptive facts. When an exceptive provision referred to in the initial language of the enacting clause is taken to be incorporated with that language as essential to complete the general prohibition of the statute, the burden is upon the prosecution to negative that provision, prima facie, as part of its main case. There is no such burden imposed on the prosecution, however, when the facts hypothesized in the exceptive provision are peculiarly within the knowledge of the defendant, or the evidence concerning them is within his private control.

There being no evidence that Vance qualified for exemption from the provisions of these statutes, which he clearly violated, we affirm the convictions.

DAUGHTREY, J., concurs.