State v. Burton

• Citation: 50 S.E. 214,138 N.C. 575
• Parties: STATE v. BURTON.
• Decision Date: 21 March 1905
• Court: North Carolina Supreme Court

50 S.E. 214

138 N.C. 575

STATE v. BURTON.

Supreme Court of North Carolina

March 21, 1905

Appeal from Superior Court, Duplin County; Justice, Judge.

Joel Burton was convicted of violating the liquor law, and appeals. Affirmed.

An indictment charging the sale of vinous liquors in violation of Pub.Laws 1901, p. 498, c. 347, forbidding the sale or manufacture of liquor in a certain county, section 1 of which contains a proviso that it shall not apply to wine or cider manufactured from fruit raised on the lands of the person manufacturing the same, need not negative the proviso, and aver that the liquors sold were not manufactured from grapes raised on the lands of defendant.

Kerr & Gavin, for appellant.

Robert D. Gilmer, Atty. Gen., for the State.

CONNOR J.

The defendant was charged with violating chapter 347, p. 498 Pub. Laws 1901, forbidding the sale or manufacture of spirituous, vinous, or malt liquors in Duplin county. Section 1 of the act concludes: "Provided: That this act shall not be so construed as to apply to wine or cider manufactured from grapes, berries or fruit raised on the lands of the person so manufacturing the same." The bill of indictment charged the sale of vinous liquors. It contained no averment that the liquors sold were not manufactured from grapes raised on the lands of the defendant. Defendant made a motion to quash, for that no such averment was made. Motion denied. Defendant excepted. His honor properly denied the motion. The principle is well stated by Henderson, C.J., in State v. Norman, 13 N.C. 222: "We find in the act of our Legislature two kinds of provisos--the one; in the nature of an exception which withdraws the case provided for from the operation of the act; the other, adding a qualification whereby a case is brought within that operation. When the proviso is of the first kind, it is not necessary, in an indictment or other charge founded upon the act, to negative the proviso. It is left to the defendant to show that fact by way of defense. But in a proviso of the latter description the indictment must bring the case within the proviso." In Norman's Case the act defining and fixing the punishment for bigamy contained in the same section the proviso. Ashe, J., in State v. Heaton, 81 N.C. 542, says: "It is a well-established principle that, if there be an exception contained in a clause of the act which creates the offense, the indictment must show negatively that the subject of the indictment does not come within the exception; but, when the exception or proviso is in a subsequent clause of the statute, as in this case, it is a matter of defense for the defendant, and need not be negatived in the pleading." The defendant presses upon our attention the language of Davis, J., in State v Hazell, 100 N.C. 471, 6 S.E. 404. It is only suggested therein that the indictment should contain the negative averment. The language of the statute under which the indictment was drawn was different from that under consideration. In any event, the case does not decide the point. The defendant misconstrues the words "same clause," used in many of the opinions, by giving to it the same signification as "same section." The line separating the two classes of cases is not made dependent upon the mere location of the excepting language, but is dependent upon its office in describing the offense. This is illustrated in State v. Holder, 133 N.C. 713, 45 S.E. 862. The indictment did not negative the fact that defendant had a license. This was a fatal defect, because the statute defines the offense to be "retailing without license." As in State v. Krider, 78 N.C. 481 an indictment charging...