State v. Bevins
| Citation | 41 A. 655,70 Vt. 574 |
| Parties | STATE v. D. C. BEVINS |
| Decision Date | 18 July 1898 |
| Court | United States State Supreme Court of Vermont |
May Term, 1898.
COMPLAINT for peddling without a license. Heard in the city court for the city of St. Albans, April 15, 1898, upon general and special demurrer to the complaint. Demurrer overruled. The respondent excepted.
Judgment of the city court is reversed, demurrer sustained, complaint adjudged insufficient and quashed, and the respondent discharged.
A A. Hall, City Attorney, and H. M. Mott for the State.
Farrington & Post and H. P. Dee for the respondent.
Present ROSS, C. J., TAFT, ROWELL, TYLER, MUNSON, START and THOMPSON, JJ.
(1) One question before us is, whether, in drawing a complaint for a violation of § 3, Chap. 26, of the ordinances of the city of St. Albans, requiring a license fee from peddlers of meat, milk, fish, fruit, etc., it is necessary to negative the exception of a person who vends the products of his own land as provided by No. 105, Acts 1896. Whether it is necessary to negate in an indictment such facts as qualify the offense and excuse the respondent from liability, is oftentimes a difficult question. In Smith v. Moore, 6 Me. 274, it was said, "There seem to be many shadowy distinctions, the sound reason and good sense of which are not easily discoverable." It has been stated at times, that whether the exception need be negatived depends upon whether it was in the enacting clause or in a subsequent section. The rule is so stated in State v. Butler, 17 Vt. 145; State v. Barker, 18 Vt. 195; State v. Palmer, 18 Vt. 570; and State v. Freeman, 27 Vt. 523. The same rule is stated by Isham, J., in State v. Abbey, 29 Vt. 60, in which case he fully discusses the meaning of the words, "enacting clause." He states the rule fully, and it has been followed since in all our cases. Whether the exception is in the first section of the statute which enacts the offense, or in a subsequent section, or in an independent statute, is not determinative of the question, for some of our cases hold that the exception need not be negatived when it is in the section of the statute which creates the offense. State v. Hodgdon, 41 Vt. 139; State v. McCaffrey, 69 Vt. 85.
The rule is correctly stated by Wilson, J., in State v. Hodgdon, supra, viz., "The exceptions should be negatived only when they are descriptive of the offense, or define it, but when the exceptions afford matters of excuse only, and do not define nor qualify the offense created by the enacting clauses, they are not required to be negatived; but when the respondent is within the exception, such fact may be relied upon in defense."
The term, "enacting clause," should be construed to mean all parts of the statutes which create and define the offense, whether in one or more sections, or acts. Bishop says, 1 Bish. New Cr. Pr. /P 635, § 2, in regard to the rule, that it depends upon the location of the exception. "This distinction is objectionable for its universality, for it is not applicable in all cases, and as adhering too closely to the letter, omitting the spirit of the doctrine." Chfford, Justice, in U. S. v. Cook, 17 Wall. 168, says, "Undoubtedly that rule will frequently hold good, and in many cases prove to be a safe guide in pleading, but it is clear that it is not a universal criterion, as the words of the statute defining the offense may be so entirely separate from the exception that all the ingredients constituting the offense may be accurately and clearly alleged, without any reference to the exception."
The correct rule is tersely stated in State v. Abbey, 29 Vt. 60; State v. Norton, 45 Vt. 258; State v. Smith, 61 Vt. 346; and State v. McCaffrey, 69 Vt. 85. The cases in this court in which it has been held necessary to negative the exception, are State v. Butler, 17 Vt. 145; State v. Barker, 18 Vt. 195; State v. Stokes, 54 Vt. 179; and State v. Stevenson, 68 Vt. 529. The question arose, but was not decided, in State v. Palmer, 18 Vt. 570; and it arose in a civil case, W. U. Tel. Co. v. Bullard, 65 Vt. 634. In State v. Hodgdon, supra, the exception is contained in the section of the act creating the offense. The act defines a peddler, and authorizes one to vend certain goods, wares and merchandise, and in a proviso in the same section, it is enacted that the section shall not extend to certain articles of domestic growth and manufacture. It was held unnecessary to negate the exception, as it constituted no part of the description of the offense, and did not enter into its definition. This case was criticised by Veazey, J., in State v. Stokes, 54 Vt. 179, who said, "it would seem to be an exception to the general line of authority, except that the form there adopted was prescribed by the statute." It is true a form, without negating the exception, was prescribed by the act, but the court made no reference to that fact in fully discussing the question. There was no occasion in State v. Stokes to criticise the Hodgdon case, for the former was within the rule which required the negation of the exception. The act of abortion was criminal, unless it was necessary to save life. The words of the exception entered into the very description of the offense.
The case before us is on "all fours" with the case of State v. Hodgdon. It is like it in every essential particular, save that in the case at bar the exception is not contained in the enacting clause, the offense being created by an ordinance of the city, and the exception by a statute of the State. Whether the exception need be negatived, very often depends upon the phraseology of the act creating the offense. To illustrate, take the statute prohibiting secular labor upon the Sabbath. To exercise secular labor except such only as is a work of necessity or charity, is penal. All labor is not necessarily penal, but only such as is not a work of necessity or charity; it is therefore necessary to allege that the unlawful labor is not a work of necessity or charity. But if the statute had been drawn prohibiting all labor on the Sabbath, and a separate clause, elsewhere, provided that the act should not be construed to extend to a work of charity, under the rule followed in this State, as laid down in the many cases cited from our reports, the exception need not be negatived.
Bishop says, 1 Bish. New Cr. Pr. /P 639, § 5, that whether an exception need be negatived is sometimes "according as the form of the expression and the nature of the matter render the exception an element in the prima facie offense, or in the defense." It is the undoubted rule at common law that an...
To continue reading
Request your trial