
    The State of Indiana v. John C. Maddox.
    
      Exceptions and Provisos in a Criminal Statute.—Where an exception is not contained in the body of a statute or section, but in a subsequent clause, it is a matter of defense merely, and it is not necessary to negative it in the indictment.
    Filed June 21, 1881.
    Appeal from Blackford Circuit Court.
   Opinion of the court by

Mr. Chief Justice Howk.

On the appellee’s motion, the indictment against him in this case was quashed, and to this decision the State excepted, and has appealed therefrom to this court. The only question for our decision, therefore, is this: did the trial court err in quashing the indictment ?

Omitting introductory and formal matters, the indictment charged in substance, that the said “John C. Mattox, late of said county, on the 1st day of November, A. D. 1880, at said county and State aforesaid, did then and there unlawfully draw a certain dangerous and deadly weapon, to-wit, a pistol, commonly called a revolver, upon the person of one James Kingsbury, contrary to the form of the statute,” etc.

It is manifest, that it was intended and attempted, in and by this indictment, to charge the appellant with the commission of a misdemeanor, which is defined and its penalty prescribed in section one of “An act defining certain misdemeanors, and prescribing penalties therefor,” approved March 13, 1875. Omitting the enacting clause, this section reads as follows:

“ That, if any person shall draw or threaten to use any pistol, dirk, knife, slung-shot or, any other deadly or dangerous weapon upon any other person, he shall be deemed guilty of a misdemeanor, and, upon conviction therefor, shall be fined in any sum not less than one nor more than five hundred dollars, to which may be added imprisonment in the county jail not to exceed six months: Provided, That the provisions of this act shall not apply to persons drawing or threatening to use such dangerous or deadly weapons in defense of his person or property, or in defense of those entitled to his protection by law.” 2 R. S. 1876, p. 459.

The appellee has not favored this court with any argument in support of the decision of the circuit court in his favor, and, therefore, we have been wholly dependent upon the well-considered brief of the appellant’s counsel for such information as we have in regard to the grounds of that decision. We learn from the brief of the attorneys of the State, that the indictment in this case was probably quashed upon the ground that it did not contain an averment negativing the exception in the proviso to the effect that the appellee did not draw his pistol “in defense of his person or property, or in defense of those entitled to his protection by law.’’ The question for our decision, therefore, is this: Was it necessary to the sufficiency or validity of the indictment in this case, that it should have negatived the exception contained in the proviso, and not in the body of the act? We are of the opinion that this question must be answered in the negative. The misdemeanor, with the commission of which the appellant is charged in the indictment is clearly and fully defined in the body of the section above quoted; while the matter stated in the proviso forms no part of the definition of the offense, but, if it exists, constitutes purely and simply a good and complete defense to any prosecution for such offense.

The exception, it will be seen, is not embraced in the enacting clause declaring and defining the offense, but. it is found in a subsequent clause or proviso of the statute. In Russell v. The State, 50 Ind. 174, this court said: “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 defense, and need not be negatived in the indictment.” This, we understand, is the settled rule of law on the subject now under consideration. Thus, in 1 Archb. Crim. Prac. and Plead., 8th Ed.,p. 361, it is said: “ But, where an offense is created by statute, and an exception is made, either by another statute, or by another and substantive clause of the same statute, it is not necessary for the prosecutor, either in the. indictment or by evidence, to show that the defendant does not come within the exception ; but it is for the defendant to prove the affirmative, which he may do under the plea of not guilty.”

Charles W. Watkins, for appellant.

For the reasons given the court clearly erred, as it seems to us, in quashing the indictment in this case.

The judgment is reversed, at the appellee’s costs, and the cause is remanded with instructions to overrule the motion to quash the indictment, and for farther proceedings not inconsistent with this opinion.  