
    I. E. Jefferson, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.
    Where the enacting clause of a statute, forbidding the doing of an act, contains one or more exceptions, an indictment for a violation of the statute must contain averments showing that the case is not within any of the exceptions ; but an exception in a subsequent clause or statute is simply matter of defense, and it is not necessary to negative it in the indictment.
    Accordingly held, that an indictment under the provision of the excise law of 1857 (Laws of 1857, chap. 635, § 14), prohibiting the sale of intoxicating liquors, to be drank on the premises, without a license therefor, “ as an inn, tavern or hotel-keeper,” was sufficient which alleged a sale of certain specified liquors, among them ale and beer, without such a license, but did not negative a license, as authorized by the Amendatory Act of 1869, to sell ale and beer. (Laws of 1869, chap. 856, § 4.)
    (Submitted December 1, 1885;
    decided December 15, 1885.)
    Error to the General Term of the Supreme Court, in the fourth judicial department, to review judgment entered upon an order, made October 20, 1882, which affirmed a judgment of the Court of Sessions of Wyoming county, entered upon a verdict convicting plaintiff in error of a violation of the excise law. (Mem. of decision below, 28 Hun, 52.)
    The questions discussed arose under the following count of the indictment:
    
      “ And the jurors aforesaid, upon their oath aforesaid, do further present that the said I. E. Jefferson on the third day of May, in the year last aforesaid, at the town of Attica and in the county last aforesaid, with force and arms, did unlawfully sell divers strong, spirituous and intoxicating liquors and wines, to be drank in the house, shop, and out-house of him, the said I. E. Jefferson there situate, that is to say: wines, whisky, beer, lager beer, Dutch beer, ale, gin, rum, brandy, and other strong, intoxicating and spirituous liquors to the jurors aforesaid unknown, without having obtained a license therefor as an inn, tavern or hotel-keeper, contrary to the farm of' the statute in such case provided,” etc.
    
      
      M. E. & E. M. Bartlett for plaintiff in error.
    The right to sell, to be drank on the premises, is expressly given to inn, tavern and hotel-keepers by chapter 625 of the Laws of 1857. (O'Rourke v. People, 3 Hun, 232.) The rule of pleading in indictments is “that a party pleading must show that his adversary is not within the exceptions.” (People v. Brown, 6 Park. Cr. 66; Stark. Cr. Pl. 171.)
    
      I. Sam Johnson, district attorney, for defendant in error.
    The motion to quash should have been made before the defendant entered his'plea of not guilty. (1 Colby's Cr. Law. 269.) In statutory offenses it is always sufficient to charge in the indictment the offense in the words of the statute. (People v. Adams, 17 Wend. 275; People v. Gilkenson, 4 Park. 26; Osgood v. People, 39 N. Y. 449; Huffstater v. People, 5 Hun, 23.)
   Danforth, J.

The indictment in question was found in May, 1881, and as the Code of Criminal Procedure had not then taken effect (§ 963), it is to be construed without regard to the provisions of that act. It contains four counts. At the close of the evidence the court ruled that there could be no conviction under the first three counts, but against the exception of the defendant’s counsel, submitted the case as one in which the defendant might be found guilty under the fourth count, saying to the jury: You are only to consider whether or not the defendant, at the time and place mentioned in the indictment, sold strong, spirituous and intoxicating liquors, to be drank on his premises, without having a license therefor as an inn, tavern, or hotel-keeper.” There was no exception to this charge, but it followed a denial of a motion by the defendant’s counsel to direct a verdict of not guilty upon the indictment generally, and also an unsuccessful motion to quash the fourth count in the indictment, upon the ground, among other things, that it was not necessary to have a license as an inn, tavern, or hotel-keeper, “ to sell, to be drank on his premises, all of the liquors mentioned in that count.” The motion was denied, and the exception then taken to the ruling of" the court is the only error now relied upon.

The indictment was evidently drawn under section 14 of the act entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed in 1857, and constituting chapter 628 of the laws of that year. That section prohibits the sale of such liquors by any person “to be drank in his house, or shop, or any out-house, yard, or garden thereof, without having obtained a license therefor as an inn, tavern, or hotel-keeper,” and it is obvious that if this were all, the appeal would be without merit, but in 1869, the act of 1857 was amended (Laws of 1869, chap. 856), and among other things, it was declared by section 4 that the provisions of the act of 1857 should be held “ to apply to the sale of ale or beer, except so much thereof as forbids the granting a license to any person, except such persons as propose to keep an inn, tavern, or hotel, and the commissioners of excise were authorized, in their discretion, to grant a license for the sale of ale or beer to persons other than those who proposed to keep an inn, tavern, or hotel.” By these provisions, the operation of the act of 1857 was restricted (People v. Smith, 69 N. Y. 175) and a new exception added to that already given by section 14 of that act, so that a person might sell ale or beer, to be drank upon his premises, if lie either kept a tavern there, or had been licensed under the act of 1869.

It is not suggested by counsel on either side that the act of 1870 (Chap. 175), regulating the sale of intoxicating liquors, has in any respect contravened the provisions of the acts of 1857 and 1869, to which I have referred. The precise objection raised by the learned counsel for the appellant is that the indictment does not allege in form or substance, that defendant had not permission to sell ale or beer; and as such articles are enumerated among those alleged to have been sold, he contends that the indictment should have negatived the exception made by the act of 1869 (supra).

It is no doubt a general rule that if a statute forbids the doing of any act, without the authority of either, one of two things, the indictment must negative the existence of both before it can be supported, and it is well settled that if exceptions are stated in the enacting clause, it Would be necessary to negative them in order that the description of the crime may correspond with the statute, but if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the defendant.

It has, therefore, been held that, where the statute imposes a penalty on the selling of spirituous liquors without a license, it is necessary to aver the want of a license in the indictment. But in Fleming v. People (27 N. Y. 329), it was said to be unnecessary in an indictment for bigamy to negative certain exceptions, although they were referred to in a section defining the offense, and that, as matter of pleading as well as proof, it was for the defendant to bring himself within the exceptions ; and as illustrating that rule, the court referred to the case of a physician practising without a license, and the selling spirituous liquors without a license, saying, the prosecution need not prove the want of qualification. It was also held that the omission of such allegations was within the meaning of the Bevised Statutes, which declare that no indictment shall be deemed invalid by reason of any defect or imperfection in matters of form, other than those which are enumerated, which shall not tend to the prejudice of the defendant.

In either view, therefore, the case was well disposed of. The act of 1869 extended the authority of the commissioners to grant a license for the sale of ale or beer, and affected many of the provisions of the act of 1857. But the indictment contains the language of section fourteen of that act, and stated an offense. We think that was enough.

The defendant was at liberty to show either that he had a license to sell strong or spirituous liquors, as provided in the fourteenth section of the act of 1857, or a license for the selling of ale or beer under the act of 1869. He did neither. The record shows that the evidence on the part of the people tended to prove that the defendant sold strong and intoxicating liquors in quantities less than five gallons, to be drank on his premises, and that the same were so drank on his premises, and rested. The character of the liquor does not appear, bat the defendant then proved by the admission of the district attorney that he had a license covering the periods alleged in the indictment, and mentioned in the evidence, “for the sale of strong and spirituous liquoi's in quantities less than five gallons, not to be drank on the premises.” No other evidence was given by him, and it is clear that he neither negatived the exception in section 14 of the act of 1857, nor brought himself within the proviso or condition of section 4, of the act of 1869: Tinder the circumstances, the court committed no error, and the judgment rendered upon the conviction was properly affirmed by the G-eneral Term.

The judgment appealed from- should, therefore, be affirmed.

All concur.

Judgment affirmed.  