
    PEOPLE v. MAXWELL (three cases).
    (Supreme Court, General Term, Second Department.
    December 10, 1894.)
    1. Ex Post Facto Laws—Saving Clause of Repealing Act.
    Laws 1S92, c. 401 (Excise Law), repealing Laws 1857, c. 628, provides (section 45) that no penalty theretofore incurred shall be affected. Held, that section 45 is not ex post facto, as its only effect is to limit the repealing provisions of the act, leaving pending prosecutions to be regulated by the act of 1857.
    2. Intoxicating Liquors—Sale without License—Evidence.
    On a trial for selling liquor without a license the prosecution is not obliged to show that defendant had no license, but it is a matter of defense for defendant to show that he had one.
    Appeal from court of sessions, Suffolk county.
    Frederick Maxwell was convicted of violating the excise laws, and appeals.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Wm. C. Cox, for appellant.
    W. H. Jay cox, for the People.
   CULLEN, J.

These are appeals from judgments of the court of sessions of Suffolk county upon convictions of the defendant on three separate indictments for violating the excise laws. The offenses are alleged to have been committed in the year 1890, and the indictments were found in 1891. The trials were had in 1894. The principal point urged by the defendant on this appeal is that the repeal of the statute of 1857 by the enactment of the excise law of 1892 (chapter 401) rendered the further prosecution of the indictments against him impossible, the saving clause of that act as to past offenses to the contrary notwithstanding. We have no doubt as to the constitutionality and efficacy of the saving clause. It is in no sense an ex post facto law. The defendant is not punished under the saving clause of the act of 1892, but under the law as it existed at the time he committed the offense, the only effect of the saving clause being to limit the scope and operation of the repealing provisions of the statute. The principle that the repeal of a statute creating a crime or prescribing its punishment prevents prosecution for offenses committed while the law was in force is merely a rule of statutory construction. There is no question of natural right or principle of personal liberty involved. The legislature has power to pass a statute as to criminal offenses applicable alone to the future, and such statute will not repeal the prior law on the subject, nor give immunity to past offenders. Mongeon v. People, 55 N. Y. 613. The result sought to be obtained being entirely within the power of the legislature, we cannot see why the legislature is not equally the master of the means to be employed, and why it may not do the thing by a saving clause as well as by a statute applicable to future offenses. On the trial of the indictment for selling liquor without a license, objection was made that the prosecution had given no proof that the defendant had not a license. The objection is untenable, as such proof was not required to be given to make out the people’s case. If the defendant had a license it was incumbent upon him to show it. Schwab v. People, 4 Hun, 520; 1 Greenl. Ev. § 79 The judgments appealed from should be affirmed. All concur.  