State v. Gurney

The allegations of an indictment in this Court are to regard the laws of the State only. An exception in the enacting clause of a penal statute must he negatived in the indictment. But it is not requisite that it should notice exceptions contained in any subsequent clause. Pacts which may bring the case within the exceptions or provisos of such subsequent clause, are to be proved or pleaded by the defendant. In an indictment charging that the defendant is a common seller of prohibited liquors, it is not necessary to aver that they were not imported from any foreign place or sold by him in the importation packages.

On Report ’from Nisi Prius, Wells, J., presiding. Indictment under the Act of 1851, “for the suppression of drinking houses and tippling shops.” In one of its counts the indictment charged, that the defendant “ was a common seller of spirituous and intoxicating liquor, not being duly appointed therefor pursuant to the provisions of said Act.” In another count it charged, that the defendant, at Saco, was such seller, “not being duly appointed as the agent of such town of Saco to sell therein spirits, wines and other intoxicating liquors to be used for medicinal and mechanical pui’poses, and not having given bond therefor pursuant to the provisions of the statute.” The juxy returned a verdict that the defendaxxt was guilty; and he thereupon moved in arrest of judgment, alleging the following causes; — 1. Because the Act, upon which the indictment is founded, is in conflict with the constitution of this State.. 2. Because it is in conflict with the constitution and laws of the United States. 3. Because the indictment does not allege, that the defendant was a common seller of spirituous or intoxicating’ liquor, which had not been imported into the United States, under the laws of the United States, and in accordance therewith, and contained in the original packages in which they were imported, and in quantities not less than the laws of the United States prescribe. 4. Because the indictment does not allege that the defendant was a common seller of spirituous or intoxicating liquors, not imported into the United States, in accordance with the laws of the United States, and by authority thereof, and in quantities less than said laws of the United States prescribe for such importation. 5. Because the indictment does not allege that the defendant was a common seller of spirituous and intoxicating liquox’, not imported into the United States under and in accordance with the laws of the United States, and sold in the original packages in which they were imported, and in quantities not less than the laws of the United States prescxúbe. 6. Because the indictment does not allege that the defendant was a seller of spirituous or intoxicating liquor not imported into the United States' by him, under and in accordance with the laws of the United States, and remaining and sold in the original packages in which they were imported, and in quantities not less than the laws of the United States prescribe. 7. Because the indictment does not allege that the defendant was a common seller of spirituous or intoxicating liquor, not for medicinal and mechanical purposes, only. By agreement, the Court was to enter such judgment as is authorized by law. All the facts alleged in the indictment may be true, and yet constitute no offence. State v. Godfrey, 24 Maine, 232. The indictment contains no averment negativing that the liquors were imported by the defendant, and sold by him in the original packages. Under our statute, sale of liquors in the largest quantities are prohibited equally as sales. by retail. Brown v. Maryland, 12 Wheat. 419; Thurlo v. Massachusetts, in error, 5 How. .573. By a statute of U. S., passed Aug. 6, 1846, the Secretary of the Treasury is authorized to make such regulations as may be necessary, &c. These regulations have the force of law. By Circular No. 34, of “instructions to collectors and other officers of the customs,” issued by the Secretary of the Treasury, Feb. 17, 1849, under the power granted by the •5th § of the Act before mentioned, it is provided, that “ cellars of stores, occupied for general business purposes, may be used for the storage of wines and distilled spirits imported by1 the owner or lessee only.” And by a provision of law referred to in this circular, such private stores “ shall be kept under the joint locks of the inspector and importer.” The 8th § of this circular provides, that “ all merchandize thus stored, may be examined at any time, during the business hours of the port, by the importer, consignee or agent, who shall have liberty to take samples of his goods according to the usage of his port. He may also have any further privileges to facilitate the sale, of his goods while in bond, which the collector of the port may deem 'advisable,” &c. Here provision is made for the sale of imported merchandize, (including spirituous liquors,) even before the duties are paid, while in bond, and privileges are given to encourage and facilitate such sales; and it is an every day occurrence for imported spirituous liquors to be sold in bond, and to be shipped while in bond from one port of entry to another, after such sales. The importer of spirituous and intoxicating liquors, who thus avails himself of the facilities extended to him by the laws of the United States, and the regulations of the Treasury Department, and engages in the business of selling his imported liquors in bond, until he has effected three distinct sales, is a “ common seller, &c.,” but he is guilty of no of-fence against any valid State law. It is said, that “ when an offence is created by statute, and there is an exception in the enacting clause, the indict-' ment must negative the exception. But if there be a proviso, which furnishes matter of excuse for the defendant, it need not be negatived in the indictment, but he must plead it.” State v. Godfrey, 24 Maine, 234. In the statute on which this indictment is based, there is no proviso declaring that it shall not apply to sellers of liquors by authority of the laws of the United States. The exemption of such persons from the penalties of this statute, is not created by a proviso, which is itself a part of the statute, but it exists by force of a law which the constitution of the United States declares, “ shall be the supreme law of the land.” Nor is this exemption created or expressly declared, by any exception contained in the enacting clause of the statute creating the offence. So that this rule of criminal pleading, to which we have referred, cannot apply to this case, unless the 8th section of the Act of 1851, “for the suppression of drinking houses and tippling shops,” be construed as elliptical, as it ought to be, in order to make it consistent with the laws of the 'United States. If the statute is thus construed, and the ellipsis is supplied by reading the section, “no person shall be allowed to be a common seller of spirituous or intoxicating liquor, except as authorized by the laws of the United States,” <fcc., then the exception would be in the enacting clause of the statute creating the offence, and must be negatived in the indictment. Upon this .point we cite State v. Godfrey, 24 Maine, 232. It has a strong -analogy to this Gase, and we rely upon it as a full authority to show that this indictment is invalid. If it be said that the offence is described in the language of the statute, and that this is sufficient, we reply, that no offence is described by the simple words of the statute; and the statute itself can be sustained as in harmony with the laws of the United States, only by construing it as elliptical, and supplying the ellipsis as before suggested. Preston v. Drew, 33 Maine, 563 • Hopkins v. Commonwealth, 3 Met. 465. If it be said the protection given by the laws of the United States is matter, to be shown in defence, not needing to be negatived in the indictment, we find a full reply already made in the case State v. Godfrey, 24 Maine, 232, to which we again respectfully refer.