Brutton v. State

4 Ind. 602, 1853 Ind. LEXIS 235

• Court: Indiana Supreme Court
• Decided: December 31, 1853
• Status: Published

Opinion

Perkins, J.

Prosecution for retailing without license, under the liquor act of 1853. Conviction below.

J. Ryman, for the appellant. E. Dumont, for the state.

Neither the affidavit nor the information negatives that the liquor was sold for mechanical, medicinal, or culinary, &c., purposes. The section of said liquor act which prohibits retailing, provides “that no person shall retail spirituous liquors, except for sacramental, mechanical, chemical, medicinal or culinary purposes,” “without filing with the auditor his bond,” &c.

The exception, which is very comprehensive, is contained, it will be observed, in the body of the prohibitory section; and there is no rule better settled than that in such cases the indictment, information, or complaint must negative it.

This rule is too familiar to the profession to require a citation of authorities to prove its existence. See Chit. Crim. Law, vol. 1, p. 284. And Mr. Chitty remarks, same page, that in prosecutions upon penal statutes much greater strictness is required than in the case of an indictment; “for, in general,” he says, “it is necessary to show by negative averments, that the defendant is not within any of the provisoes or exceptions of the statute” itself in such prosecutions.

Per Curiam.

The judgment is reversed. Cause remanded, &c.