State v. Demarce

• Decision Date: 18 June 1946
• Docket Number: 46831.
• Citation: 23 N.W.2d 441,237 Iowa 648
• Parties: STATE v. DEMARCE.
• Court: Iowa Supreme Court

23 N.W.2d 441

237 Iowa 648

STATE v. DEMARCE.

No. 46831.

Supreme Court of Iowa

June 18, 1946

John M. Rankin, Atty. Gen., of Iowa, Charles H. Scholz, Asst Atty. Gen., and B. J. Maxwell, Co. Atty., Cedar County, of Tipton, for appellant.

J U. Yessler, of Cedar Rapids, for appellee.

SMITH Justice.

Section 13210, Iowa Code 1939, provides: 'No one shall, in any manner or for any purpose whatever, except under proceeding to destroy the same, have, keep, or hold in possession or control any * * * punch board * * * or any other machines used for gambling * * *.' (Italics supplied.)

The sole question presented on this appeal is whether the state, in a prosecution for violation of this statute, must negative the existence of the excepting circumstances mentioned in the part italicized above, in the absence of proof or claim by defendant to the contrary.

The trial court held that burden was on the state and directed verdict for defendant because no evidence was offered by the state to sustain it. The state, desiring a determination of the point of law involved, has appealed. Of course the judgment appealed from is a finality as to defendant. Section 14012 Iowa Code, 1939; State v. Kellison, 233 Iowa 1274, 1276, 11 N.W.2d 371.

After examining many decisions in our own and other jurisdictions we are constrained to borrow the language of the Annotator in 153 A.L.R. 1219 and say that there is presented here 'one of the most frequent problems in criminal procedure, yet often one of the most baffling.' When, in a prosecution under a statute, is it a part of the state's case to show that the defendant is not within a statutory exception?

I. It is true this court at an early date apparently embraced the so-called 'physical location' rule which made determination of the question to depend entirely on the location of the exceptive provision in the statute. If found within the purview or enacting clause or in the clause creating the offense it was held the state must both allege and offer proof as a part of its case, that the person accused, or the act he was accused of committing, was not within the exception; but if contained in a separate or subsequent clause or statute it was held a matter of defense. State v Williams, 20 Iowa 98; State v. Beneke, 9 Iowa 203, 204; State v. Van Vliet, 92 Iowa 476, 61 N.W. 241; State v. Aiken, 109 Iowa 643, 80 N.W. 1073; State v. Burns, 181 Iowa 1098, 1102, 1103, 165 N.W. 346; State v. Stapp, 29 Iowa 551; State v. Leeper, 70 Iowa 748, 30 N.W. 501.

State v. Aiken, supra [109 Iowa 643, 80 N.W. 1074], states the argument for the rule as well, perhaps, as any. It involved a charge of abortion under a statute that provided: 'If any person with intent to produce miscarriage * * * willfully administers to her any drug * * * unless such miscarriage is necessary to save her life, he shall be imprisoned * * *.' (Italics supplied.) Section 4759, Iowa Code 1897.

The opinion states: 'The exception contained in the statute is a part of the description of the offense and of the enacting clause embodied in the very section which defines the crime. Indeed, the exception is so incorporated with the prohibitive clause that one cannot be read without the other. In such cases, it is necessary that the indictment negative the exception. (Citing State v. Leeper, supra; State v. Van Vliet, supra; State v. Beneke, supra; and State v. Williams, supra.) Following these rules, it is generally held that indictment for abortion must negative all exceptions found in the section of the statute defining the offense.'

But we cannot reconcile all our cases with this simple formula. In State v. Schaffer, 95 Iowa 379, 64 N.W. 276, we apparently ignored all preceding cases and stated, without any citation of authority: 'It is a general rule, applicable to the trial of criminal cases, that, where there is an exception in a general statute, it is not incumbent on the prosecution to prove that the defendant is not within the exception.'

The statute there involved provided that 'if any person without lawful authority, dig up, disinter, remove or carry away any human body' (italics supplied) he shall be punished, etc. Section 4017, Iowa Code 1873. The opinion continues: 'The fact being peculiarly within the knowledge of the accused, it is incumbent on him to show that he is not criminally liable for the act because he is within the exception.' 1 Greenl.Ev., p. 12, is quoted in support of the last statement. It is not clear whether the decision rests upon the stated 'general rule' or upon the last quoted statement, based on Greenleaf's pronouncement.

In State v. Boever, 203 Iowa 86, 210 N.W. 571, 572, we considered a case in which defendant was accused of the crime of unlawful possession of intoxicating liquor. The statute provided in effect that no one, by himself, agent, or servant, shall keep for sale or have possession 'except as provided in this title * * *.' Section 1924, Iowa Code 1924. We said: 'The defendant, as the possessor of liquor, was entitled to show, in defense, that the liquor found in his possession was legally in his possession * * *. No obligation rests upon the state to allege and prove the provisos or to negative the exceptions in the instant indictment.'

The rigid 'physical location' rule was modified in State v. Kendig, 133 Iowa 164, 168, 110 N.W. 463, 464, in an opinion written by the same judge who wrote the earlier opinions in State v. Van Vliet, supra, and State v. Aiken, supra. The defendant was convicted of practicing medicine without a license. The statute, section 2580, Code of 1897, declared that any person would be guilty of a misdemeanor who practiced medicine 'without having first obtained and filed for record the certificate herein required, and who is not embraced in any of the exceptions contained in the chapter.'

The opinion expressly accepts the reasoning in Hale v. State, infra. The gist of that reasoning is found in a quotation from 1 Chitty Crim. Law 284: 'Where a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exception * * *. Nor is it even necessary to allege, that he is not within the benefit of the provisos, though the purview should expressly notice them, as by saying that none should do the act prohibited except in cases thereafter excepted. For all these are matters of defense, which the prosecutor need not anticipate, but which more properly come from the prisoner.' (Italics supplied.)

The opinion in the Kendig case definitely modifies the strict 'physical location' rule (based simply on the position of the exception in the statute) by the following language (133 Iowa at page 168, 110 N.W. at page 465): 'The general rule as to exceptions * * * is that where the exception * * * forms a portion of the description of the offense so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted, then it is necessary to negative the exception * * *. But, where the exception is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation; for it is a matter of defense. Hale v. State, 58 Ohio St. 676, 51 N.E. 154; U. S. v. Cook, 17 Wall 168, 21 L.Ed. 538; State v. Powers, 25 Conn. 48. The rule as sometimes stated is that, if the exception is found in the enacting clause, it must be negatived, but if found in the statute after general words of prohibition, then it need not be. (Citing State v. Van Vliet, supra; State v. Beneke, supra; and State v. Williams, supra, together with some cases from other jurisdictions.) While this is not perhaps an entirely accurate statement it is sufficient for present purposes.' (Italics supplied.)

It is impossible to reconcile the language of all our decisions. Most of the confusion has grown out of the mistake of considering the position of the exception in the statute as conclusive in itself e. g. State v. Burns, 181 Iowa 1098, 1102, 1103, 165 N.W. 346. We think it important only as an aid to determining the nature of the exception. Does the exception enter into the description of the crime? The answer to the question is frequently elusive. Courts may be pardoned for grasping at a definite grammatical rule that furnishes a sure, if not an easy, or always correct, solution of a difficult problem.

In most instances the application of the rule of physical location brings the right answer. But we have here an exception which is in the so-called enacting clause or...