State v. Paige

• Decision Date: 01 February 1906
• Court: Vermont Supreme Court
• Parties: STATE v. PAIGE.

62 A. 1017

78 Vt. 286

STATE

v. PAIGE.

Supreme Court of Vermont. Caledonia.

Feb. 1, 1906.

Exceptions from Caledonia County Court; James M. Tyler, Judge.

Harry Paige was indicted for keeping and exposing intoxicating liquor for sale contrary to the provisions of the statute. Demurrer to the indictment was overruled, and defendant excepts. Judgment affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, START, HASELTON, and POWERS, JJ.

Frank D. Thompson, State's Atty., and David E. Porter, for the State. M. M. Gordon and J. P. Lanison, for respondent.

POWERS, J. An information in two counts for keeping and exposing intoxicating liquor for sale contrary to the provisions of No. 90, p. 92, Acts of 1902. A demurrer thereto assigning ten causes, of which only those hereinafter considered are relied upon in the respondent's brief.

The first clause of section 21 of the act of 1902 prohibits the exposing or keeping for sale intoxicating liquor except as authorized in the act. The second clause of the same section provides that the act shall not apply to certain sales of cider and native wines, or to the furnishing liquor in one's own dwelling unless under the circumstances specified. The respondent claims that the information is fatally defective, in that it does not show by proper averment that the liquor referred to therein was not of the kinds specified in the second clause of the section to which the prohibition does not apply. Such averment was unnecessary. It is only when the exception in a penal statute is so incorporated with the enactment as to constitute a material part of the definition or description of the offense that it need be negatived in the information; otherwise, it is matter of defense merely. To illustrate: In an indictment under a peddler's license act which excepted from its operation goods manufactured in this state, it was held, in State v. Hodgdon, 41 Vt. 139, that it was not necessary to aver that the goods peddled were not manufactured in this state. Under a statute prohibiting the killing of deer, the third section of which provided that it should not apply to deer partially or wholly domesticated, it was held, in State v. Norton, 45 Vt. 258, that it was unnecessary to aver that the deer referred to was not domesticated. In a prosecution for bigamy, under a statute one section of which provided that it should not apply to certain persons therein specified, it was held unnecessary, in State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754, to negative the exception by averment. In a prosecution under V. S. 711, which requires children between certain ages to be sent to the public schools unless they belong to the classes therein specified, it was held, in State v. McCaffrey, 69 Vt. 85, 37 Atl. 234, to be unnecessary to negative the exceptions in the statute. The same result was reached in State v. Bevins, 70 Vt. 574, 41 Atl. 655, where the question is sufficiently discussed. If further authorities were required, reference might be had to Becker v. State, 8 Ohio St. 391, Com. v. Hart, 11 Cush. 130, and Com. v. Gagne (Mass.) 26 N. E. 449, 10 L. R. A. 442, wherein this very question was decided.

The respondent insists that the information should show how, where, and what...