
    
      The Commonwealth v. Hill.
    
      Scott, J.)
    1. What comes by way of proviso in a statute, must be insisted on for the purpose of defence by the party accused. But where exceptions are in the enacting part of a law, it must be charged that the defendant is not within any of them.
    2. It is not necessary to allege, in an indictment, that the defendant is not within the benefit of the provisos of the statute, though the purview should expressly notice them.
    
      3. An indictment under the third section of the act of 1839-40, Sess. Acts, ch. 2, p. 5, is good, though it does not negative the exceptions and provisos contained in the 4th section.
    
      David R. Hill was indicted at the October term 1846, of the Circuit Court of Henry county, for that he, without having a license therefor according to law, did on the 20th of August 1846, at his own house in said county, sell by retail, rum, brandy, &c., not to be drank where sold, against the statute in such case made and provided, &c. The defendant demurred to the indictment, and the Court below sustained the demurrer. Whereupon, on the application of the Attorney General, this Court awarded a writ of error to the judgment.
    
      The Attorney General, for the Commonwealth.
    
      Whittle, for the defendant, argued the case in wri-
    The indictment, in this case, charges, that the defendant “ without having a license therefor according to law,” did sell by retail, wine, &c. not to be drank where sold. Is this indictment good on demurrer ? Every indictment must set forth a complete offence, omitting no ingredient which enters into the composition of it. Hamptons Case, 3 Gratt. 591. Now it is clear that to retail, not to be drank where sold, without a license, is not per se an offence; for by the 4th section of the act of 3d March 1840, such liquors as shall actually have been made from the produce of “ a person’s estate, or distilled by him or her, or those in his or her employ,” may be sold without obtaining any license. Had the above exemptions been contained in the first clause of the statute, which is a clear enacting clause, it will be conceded that the indictment should have negatived the existence of the facts, which form the exemptions, and should have charged that the defendant retailed the spirituous liquors, not to be drank where sold, the said liquors not having been made from the produce of the defendant’s estate, and not having been distilled by him or those in his employ. Lord Mansfield says, that “ what comes by way of proviso in a statute, must be insisted on for the purposes of defence by the party accused ; but where exceptions are in the enacting part of a law, it must in the indictment be charged, that the defendant is not in any of them.” Dwarris on Statutes, p. 661, contained in 9 Law Library, p. 23, and Fost. 430; 1 East’s R. 664; Burr. 148; East’s P. C. 167, there quoted. Should it be insisted for the Commonwealth, that the above exemption is not contained in any enacting clause of the statute, but in a proviso annexed to it, and so need not be noticed in the indictment, but relied on by the defendant, it is submitted that a critical examination of the several clauses of the act (March 1840) will lead to a different conclusion. Though the statute is inartificially penned, yet it is clear that the offence of retailing spirituous liquors, not to be drank where sold, is created by positive enacting words, and not merely by limiting or qualifying, by way of proviso, some other clause in the statute. Such offence is created by that part of section 3, which commences with the words “and any person other than,” &c. and the following sections, to which the 3d section refers. The 2d section of the act, and as much of the 3d as extends to the above quoted words in that section, may be considered a proviso to the 1st section of the act, but the remainder of the 3d section is enacting: it is there and there only, that the offence of retailing liquors, not to be drank where sold, is created, its component parts designated, and its punishment prescribed. The whole of the statute bearing on this subject, which wears the form of a proviso, may be stricken from it, viz. the whole of the 2d section, and the 3d down to the words “ and any person other than,” without impairing the offence of retailing liquors not to be drank where sold, either in its present nature or consequences. So far from there being any proviso contained in the latter part of the 3d section, the positive enacting words which create the offence, are to be found there only. The 2d and the above cited portion of the 3d section, declare what shall not be offences under the 1st section of the act: but what are offences, so far as retailing liquors not to be drank where sold is concerned, are to be found alone in the latter part of section 3, and the clauses to which it refers. It may be that if the Commonwealth had chosen to indict the defendant for selling goods, wares and merchandize, viz. wine, rum, brandy, whiskey, &c. without having paid the tax required by law and obtained a license, that the defendant should rely on the liquors having been made from the produce of his estate, or been distilled by him, as his defence. But if, instead of this, she chooses to found her prosecution on the enacting words contained in the latter part of the 3d section, by which words the offence is created and defined, she must in her indictment aver that the defendant does not come within the exceptions contained in that clause.
    Now that part of the clause prescribes, that “any person other than such as are hereinafter excepted, who shall, otherwise than is hereinafter expressly provided, sell by retail any of such liquors as aforesaid, not to be drank in or at the place where it shall be sold, or in any booth, arbour or stall, shall, for every such offence, be subject to a like penalty as is imposed by law for failing to obtain a retail merchant’s license, to be recovered in all respects in the same mannerand any indictment-framed upon it must negative the cases excepted from its operation, viz. those in which the liquor was made from the produce of the defendant’s estate, &c. It is true, that these exceptions are not contained by name in the clause above cited, but then they are specifically mentioned in a clause which, by direct reference, is incorporated into the third clause. The view above taken, that the offence is created by the latter part of the 3d section, and those referred to therein, and that it would i he complete without any portion of the 2d section, or of the first part of the 3d, is not at all impaired by the use in the latter part of section 3d, of the words “any of such liquors as aforesaid,” for in the 4th and 5th sections the liquors meant are clearly described, without referring to any previous clause of the statute to ascertain them. In Coe’s Case, 9 Leigh 622, the Court clearly consider the 3d section as creating an offence, and not merely as containing a proviso. It is there distinctly said, that a party may be indicted under it. So in Hampton’s Case, above cited. How an indictment on the 3d section of the act of March 1840, should be framed, has not been settled by the Supreme Criminal Court in Virginia; its decision was waived in Coe’s Case, and in Hampton’s Case the Court avoided an opinion on the details. It may, therefore, be considered an original question. We are then thrown on the principles of criminal pleading, and by these, as above shewn, it is submitted that this indictment is fatally defective, for not negativing the above mentioned facts, which shew that without any license, a party may retail ardent spirits not to be drank where sold.
    The whole process of reasoning used by the Court in Hampton’s Case, shews that the existence of such facts as authorize a party to sell ardent spirits without license, should be negatived in the indictment. It is true, that in that case, the Court say, p. 592, “ the want of the license and certificate required by the act of March 3, 1840, is a constituent of the offence created by the 3d section of that statuteand for this defect the demurrer to the information was sustained; but they do not say that the information would have been good, had it contained an averment of the want of the license and certificate. For the Court say, the offence is not the “ selling of ardent spirits, not to be drank at the place where sold, but such selling, otherwise than is by that statute expressly provided. An information, therefore, in which that offence is designed to be charged, must contain an averment to this effect.” Now, selling such liquor as is made from the produce of the defendant’s estate, or distilled by him or those in his employ, though sold without license, is not selling otherwise than is by the statute expressly provided; and there is no averment in any form that the selling was otherwise than the act provides. The Court could not have intended to say, that in Hampton’s Case the mere averment of the want of license and certificate, would have made the information good, without disregarding all the reasoning in the case, and the express opinion of the Court above quoted. The information charged that the defendant had retailed ardent spirits not to be drank at the place where sold, without an ordinary license, and the Court merely say, that the want of license to be averred is not the ordinary license, but the merchant’s license and certificate mentioned in the act of 1840; and that it must, in some form or other, but in what they did not say, be averred, that the selling was otherwise than by the statute is expressly provided. Now, whether this averment is to be made in the very language of the statute, or otherwise, is as immaterial here as in Hampton’s Case ; for, being averred in no form, the demurrer to the indictment should be sustained.
   Lomax, J.

delivered the opinion of the Court.

Hill was indicted at October term 1846, in Henry Circuit Court, for that “ without having a license therefor, according to law, he did, on the 20th day of August in the year 1846, at his own house, in said county, sell by retail, wine, rum, brandy, and mixtures thereof, not to be drank where sold, against the statute,” &c. &c. To this indictment the accused demurred; the Cornmonwealth’s attorney joining in the demurrer. The ^ourt gave judgment sustaining the demurrer, and decided that the matters in the indictment, as the same were therein set forth, were not sufficient. To this judgment a writ of error was awarded at the last term of this Court, at the instance of the attorney general, returnable to the present term; and the case now comes on for judgment upon the matters of error.

The insufficiency of the indictment is suggested to consist in this, that there is no averment in it, negativing that the liquors charged to have been retailed without license, had been actually made from the produce of the defendant’s own estate, or distilled by him or those in his employ. And this Court is of opinion that such averment of negation was not necessary to the sufficiency of the indictment.

This prosecution is under the statute c. 2, acts of 1839-40.

The first section of that act prohibits any person from selling, without license, goods, wares, merchandize or other articles of foreign or domestic growth, production or manufacture,” &c. and inflicts a penalty of double the amount of the tax to be paid for the license to sell. In this section, there are no exemptions or exceptions of any articles whatsoever coming within the broad description of what shall not be sold. There is in that clause no exemption or exception of liquors actually made from the produce of his own estate, or distilled by him, &c. That exemption or exception is to be found in a subsequent proviso and enactments in the same law. The doctrine of Lord Mansfield is not questioned by the counsel for the defendant in error ; that “ what comes by way of proviso in a statute must be insisted on for the purpose of defence by the party accused. But where exceptions are in the euacting part of a law, it must be charged that the defendant is not in any of them.” And the counsel contends that this case is to be regarded as coming within the influence of the rule, thus laid down, as that rule applies to exceptions in the enacting part of the law. And he seems moreover to concede that if the Commonwealth had chosen to indict the defendant for selling goods, wares aud merchandize, viz. rum, brandy, whiskey, &c. without having paid the tax required by law, and obtained a license, that in that case the defendant should rely on the liquors having been made from the produce of his own estate, or been distilled by him, &c. as his defence. That case seems very properly to be admitted to be a case falling within the influence of the first part of the rule above laid down, because in reference to that first clause of the statute declaring a general prohibition, and inflicting the penalty of double the tax payable for the license, all the exceptions are found'1 in the subsequent provisos or sections of the law distinct from that 1st section. We have not, in our consideration of this cause, paused to determine whether this indictment may or may not be regarded as an indictment founded on the general provision of the 1st section of the statute, which would bring along with it the conceded- consequence, that no averment of negation of any exception would be required in the iudictment, and that the exception contained in the subsequent proviso or clause of the act would be matter of defence, to be shewn on the part of the accused.

The defendant contends, however, that this prosecution, as this indictment is framed, is to be maintained, not upon the 1st section of the statute, but upon a distinct enactment of the offence in question, which is to be found in the 3d section.

The frame of the statute, in those parts which can be supposed to have any bearing'upon the sale without license* of liquors not- to be drank where sold, is this:

1. The 1st section enacts, as before stated, a prohibition, generally, without license, of the sale of goods, &c., or other articles of foreign or domestic growth, by wholesale or retail.

2. Provided that no person, shall be construed tobe prevented from disposing of any goods, &c., or other articles of his own manufacture, within this Commonwealth.

3. Nothing in that proviso contained, shall be construed to authorize any person to sell by retail any wine, rum or brandy, or other ardent spirits, not to be drank in or at the place where it shall be sold, or in any booth, &c. “ And any person other than such as are hereinafter excepted, who shall, otherwise than is hereinafter expressly provided, sell by retail any of such liquors as aforesaid, not to be drank in or at the place where it shall be sold, or in any booth, &c., shall, for every such offence, be subject to a like penalty as is imposed by law for failing to obtain a retail merchant’s license, [the license required by the 1st section,] to be recovered in all respects in the same manner.”

4. Provided that nothing in the act shall be construed to prohibit any person from retailing such liquors as shall have actually been made front the produce of his own estate, or distilled by him or those in his employ, so as such liquors be not drank in or at the store within an incorporated town, nor in or at the house or plantation, as the case may be, where the same shall have been sold, &c.

Conceding, then, that it is by virtue of the enactment expressed in the 3d section, that this prosecution is to be maintained upon this indictment, without any reference to the 1st section, the Court thinks still that the objection made to the indictment cannot be maintained. The offence is enacted by this 3d section; and any person, other than such as are thereinafter excepted, who shall, otherwise than is thereinafter expressly provided, sell, &c., is subjected to the penalty. What these exceptions and provisions are, will be found in the 4th section ; and among them, is that of a person selling liquors actually made from the produce of his own estate, &c. It cannot, consistently with any authority which we have met with, be contended that the terms of such enactment as the above, have so incorporated the exceptions with the enactments, as to require the negation of the exception as an essential element in the indictment, and not to make the matter of the exception a part of the defence. The rule of law seems directly opposed to any such pretension. It is laid down, in regard to this doctrine, in 1 Chitt. Cr. Law 283, 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. 1 Sid. 303; 2 Hale 171; 1 Lev. 26; Poph. 93, 4; 1 Burr. R. 148; 2 Burr. R. 1037; and numerous other authorities. Nor is it even necessary to allege that he is not within the benefit of the provisos, though the purview should expressly notice them; as by saying that none shall do the act prohibited, except in cases thereinafter excepted. Poph. 93-6; Hawk. b. 2, ch. 25, § 113. For all these are matters of defence, which the prosecutor need not anticipate, but which are more properly to come from the prisoner.

Upon these considerations, this Court doth reverse the judgment of the Circuit Court of Henry.

Demurrer overruled, and the case sent back for further proceedings in the Court below.  