Brutton v. State

Decision Date31 December 1853
Citation4 Ind. 601
PartiesBrutton v. The State
CourtIndiana Supreme Court

APPEAL from the Dearborn Court of Common Pleas.

The judgment is reversed. Cause remanded.

J. Ryman, for the appellant.

E. Dumont, for the state.


Stuart, J.

It is charged tat Brutton sold liquor without a license. Motion to quash overruled. Trial and judgment for the state.

It is objected to the information that it does not negative the exception in the first section of the act of 1853 as to the sale of liquor for sacramental, mechanical, chemical, medicinal and culinary purposes. The law in relation to exceptions in a statute is well settled. If the exception be contained in a subsequent clause or statute, it is matter of defence and need not be negatived in the information. Thus the statute of 1 Elizabeth, c. 2, punishing absence from church, the party "having no reasonable excuse," &c., it is not necessary to aver in the indictment that he had no reasonable excuse for his absence: the matter of excuse comes from the defendant. 1 Chitty Crim. L. 283.--Arch. 48-9. But according to the same authorities, if the exception be closely connected with the enacting clause, or if it be in the same clause of the act which creates the offence, it is necessary to show by negative averment that the defendant is not within the exception. The position of the exception in the statute under consideration is clearly within the rule requiring the negative averment.

This exactness in criminal pleadings is not an idle technicality. But on the contrary, it is a safe and salutary public policy deduced from experience and supported by the weightiest reasons. Rosenbaum v. The State, ante, p. 599.

This information is also defective in that it does not allege any price or any quantity of liquor sold. To aver a sale of less than a gallon, without specifying the sum and the quantity, is inverting the pleadings and alleging conclusions instead of facts. Divine v. The State, ante, p. 240.

Per Curiam.

The judgment is reversed. Cause remanded, &c. [1]



[1]The judgments in seven other cases of Brutton v. The State, were affirmed, on this day, for the reasons given in this case.


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21 cases
  • Steinkuehler v. Wempner
    • United States
    • Indiana Supreme Court
    • May 28, 1907
    ...the defendant is not within such exceptions, provided the exception is in the clause of the act which creates the offense. Brutton v. State (1853), 4 Ind. 601; Peterson v. State (1856), 7 Ind. Schneider v. State (1857), 8 Ind. 410; Russell v. State (1875), 50 Ind. 174; Cleveland, etc., R. C......
  • Cent. Indiana Ry. Co. v. Smith
    • United States
    • Indiana Appellate Court
    • June 4, 1908 contained in a subsequent clause or statute, it is a matter of defense, and need not be negatived in the information.” Brutton v. State, 4 Ind. 601;Cleveland, etc., v. Gray, 148 Ind. 266, 272, 46 N. E. 675. The demurrer was properly overruled. The second error is based on the exception t......
  • Bishop v. State ex rel. Griner
    • United States
    • Indiana Supreme Court
    • January 4, 1898
    ...plaintiff was required to negative the exception made in favor of a postmaster whose annual compensation does not exceed $90. Brutton v. State, 4 Ind. 601, 602;Shearer v. State, 7 Blackf. 99;Howe v. State, 10 Ind. 423;State v. Carpenter, 20 Ind. 219;Wiley v. State, 52 Ind. 516; Burk v. Stat......
  • City of Cannelton v. Collins
    • United States
    • Indiana Supreme Court
    • April 21, 1909
    ...indispensable in charging a sale of liquor. Divine v. State, 4 Ind. 240;Hare v. State, 4 Ind. 241;State v. Miles, 4 Ind. 577;Brutton v. State, 4 Ind. 601;Miles v. State, 5 Ind. 215;Segur v. State, 6 Ind. 451;State v. Downs, 7 Ind. 237;Hubbard v. State, 11 Ind. 554;Cool v. State, 16 Ind. 355......
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