
    Russell v. The State.
    Ceimustal Law.—Indictment.—Exceptions Contained in Definition of Omne.— Where the definition of a criminal offence contains an exception closely connected with the enacting clause, or in the same clause that creates the offence, it is necessary in an indictment for such offence to show, by negative averment, that the defendant is not within the exception; but 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.
    
      Same.—Desecration of Sabbath.—An indictment, under the act of February 28th, 1875, for the desecration of the Sabbath by common labor, alleged that it was not a work of charity, but omitted the words “and necessity,” contained in the exception made by the statute.
    
      Held, that the indictment was bad on motion to quash.
    From tbe Marion Criminal Circuit Court.
    
      L. Jordan and II. Jordan, for appellant.
    
      C. A. Bushirlc, Attorney General, and J. M. Cropsey, Prosecuting Attorney, for the State.
   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.  