Territory v. Burns

• Citation: 6 Mont. 72
• Parties: TERRITORY v. BURNS.
• Decision Date: 06 January 1886
• Court: United States State Supreme Court of Montana

6 Mont. 72

TERRITORY

v.BURNS.

Supreme Court of the Territory of Montana.

Filed January 6, 1886.

Appeal from First district, Gallatin county.

Henry N. Blake, Dist. Atty., and Wm. H. Hunt, Atty. Gen., for the Territory.

J. L. Staats, for respondent.

GALBRAITH, J.

This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the indictment. The offense charged in the indictment was that of bearing a deadly weapon concealed upon the person. This offense is prohibited by the following legislative enactment:

“Section 1. It shall be unlawful for any person within the limits of any city, town, or village in this territory to bear concealed upon his person any dirk, dagger, pistol, revolver, or other deadly weapon.

“Sec. 2. Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor; and upon conviction thereof shall be punished by a fine not less than ten dollars, nor more than one hundred dollars.

“Sec. 3. This act shall not apply to peace officers in the discharge of their official duties.”

The demurrer was only upon the ground that the facts stated in the indictment did not constitute a public offense. The charging part of the indictment was as follows:

“That Patsey Burns, late of the county of Gallatin, aforesaid, on the fifth day of February, A. D. 1885, at the county of Gallatin aforesaid, did unlawfully bear concealed upon the person of him, the said Patsey Burns, a deadly weapon, -to-wit, a certain revolver,-within the limits of the town of Timberline, county of Gallatin, aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Montana.”

It is claimed by the respondent that the failure to aver that he was not a peace officer in the discharge of his official duty, and thus to negative the exception contained in the statute, renders the indictment fatally objectionable to the foregoing demurrer. It is a rule of pleading in criminal law that the indictment should set forth all that is necessary to constitute a complete description of the offense charged. This is especially true of statutory offenses, which is the character of the misdemeanor alleged in the above indictment. The indictment in such case should state all the ingredients of which the offense charged is constituted, as contained in the statute, which declares and defines such offense. When that is done, the prosecution has set forth a prima facie case, which is all that the law requires. When an exception is stated in the statute it is not necessary to negative such exception, unless it is a constituent part of the definition of the offense. The exception must be a constituent or an ingredient of the offense declared by the statute, in order to require that it shall be negatived by the indictment.

It would appear to have formerly been the rule that, “if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.” 1 Chit. Crim. Law, 283, 284. But even then, the rule as stated by the same author was that, “when 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 exceptions, or to negative the provisos it contains. Nor is it even necessary to allege that he is not within the benefit of its provisos, though the purview should expressly notice them, as by saying: ‘None shall do the act prohibited, except in the cases thereinafter excepted;’ for all these are matters of...