State v. Morrison

• Citation: 14 N.C. 299
• Parties: THE STATE v. CATHARINE MORRISON.
• Decision Date: 31 December 1831
• Court: United States State Supreme Court of North Carolina

14 N.C. 299

THE STATE

v.CATHARINE MORRISON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1831

On the trial of an indictment under the Act of 1816 (Rev., ch. 906) to prohibit the retailing of spirituous liquors by the small measure, it is incumbent on the defendant to show the existence of a license.

THE defendant was indicted for retailing spirituous liquors by a less measure than a quart. On the trial, before his Honor, Strange, J., at ROBESON, on the last circuit, the charge of selling by the small measure being fully proved by the prosecution, it was contended for the

defendant that the State must prove the want of a license. But his Honor charged the jury that it was incumbent on the defendant to show the existence of a license. A verdict was rendered for the State, and the defendant appealed.

RUFFIN, J. This appeal seems to rest on the argument that the indictment ought, and does, charge the want of a license, and therefore the State must prove it. It is true there is a known distinction, where an exception is embraced in the enacting clause of a statute, and where it comes in by a proviso, or by distinct enactment. In the former case the indictment must allege, as here, that the defendant is not within the exception, because the negatives are descriptive of the offense, though in the latter it may be silent on that point, and the justification or excuse must be adduced in defense by the party accused. Yet the consequence claimed by this defendant cannot be yielded. The questions are very different. This is not a question of pleading. It is one of evidence. And although it be admitted that the indictment must negative the existence of the license, it remains to inquire upon whom the proof on that point is incumbent, or rather what is proof of the defendant's guilt. The general rule, founded on convenience and common sense, is that the affirmative must be proved. He who alleges a fact to be, is naturally expected to show its existence, and not he who denies it to show that it is not. The few exceptions to this principle, as yet established, do not extend to the case before us. In the case of Lord Halifax (Bull, N. P., 298), who was accused of refusing to deliver to hissuccessor the papers of his office, it was required that the refusal should be shown. This might be because the law presumes that every sworn public officer will do his duty, until the contrary appears. Or it might be, that as the omission is the criminal act, it must be expressly proved, and it can be done and ought to be done by affirmative evidence to the fact of refusal, as is the case in every instance where a previous demand and refusal are necessary without putting the defendant to show, on his part, performance or a readiness.

There are other exceptions where the affirmative evidence is not within the knowledge, or peculiarly within the knowledge of the defendant, as in Williams v. The E. I. Co. (3 East, 162) and Rex v. Rogers (2 Camp., 654). In all other cases the affirmative, as being easily, explicitly and directly shown, ought to be proved. This has been held to embrace special qualifications and license to exercise particular trades. In Rex v. Stone (1 East, 639), it was admitted by Lord Kenyon and Mr. Justice Lawrence, that in an action on the game laws, no negative proof

was. ever given by the plaintiff, of a want of qualification in the defendant, but the affirmative lies on the latter to show such qualification. It is true the Court was equally divided in that case, but not on the general question of evidence. Those two judges thought that on information before magistrates the negative, a want of qualification, ought to appear on the conviction as having been proved by the prosecutor, while the other judges held differently. I confess I do not perceive why the modes of proof should be different before two legal tribunals, since the same conclusion is sought by each, and would seem to follow from the same evidence before both. But the concession there (in which all agreed) that in an action no negative evidence is...