Russell v. State

50 Ind. 174

Opinion

Buskibk, J.

The appellant was indicted and convicted, in the court below, for the desecration of the Sabbath, by superintending, controlling, and carrying on a barber-shop on Sunday. A motion to quash the indictment was made and overruled, and an exception taken. This ruling is assigned for error.

The objection urged to the indictment is, that it does not negative all the exceptions contained in the body of the act. The statute, among other things, excepts “ works of charity and necessity.” The indictment alleges that it was not a work of charity, but omits the words “ and necessity.” The objection is well taken, and is fatal.

The law in relation to exceptions in a statute is, that if the exception be contained in a subsequent clause or statute, it is a matter of defence, and need not be negatived in the indictment; but if it be closely connected with the enacting clause, or if it be in the same clause of the act which creates an offence, it is necessary to show, by negative averment, that the defendant is not within the exception. Colson v. The State, 7 Blackf. 590; Bouser v. The State, Smith Ind. 408; Brutton v. The State, 4 Ind. 601; Peterson v. The State, 7 Ind. 560; Dillon v. The State, 9 Ind. 408.

The court erred in overruling the motion to quash.

Thejudgmentis reversed, with costs, and the cause remanded, with directions to the court below to sustain the motion to quash the indictment.