23 N.W.2d 441 | Iowa | 1946
Section
"No one shall, in any manner or for any purpose whatever,except under proceeding to destroy the same, have, keep, *649 or hold in possession or control any * * * punch board * * * or any other machines used for gambling * * *." (Italics supplied.)
The sole question presented on this appeal is whether the State, in a prosecution for violation of this statute, must negative the existence of the excepting circumstances mentioned in the part italicized above, in the absence of proof or claim by defendant to the contrary.
The trial court held that burden was on the State and directed verdict for defendant because no evidence was offered by the State to sustain it. The State, desiring a determination of the point of law involved, has appealed. Of course, the judgment appealed from is a finality as to defendant. Section 793.20, Code, 1946 [section 14012, Iowa Code, 1939]; State v. Kellison,
After examining many decisions in our own and other jurisdictions we are constrained to borrow the language of the annotator in 153 A.L.R. 1219, and say that there is presented here "one of the most frequent problems in criminal procedure, yet often one of the most baffling." When, in a prosecution under a statute, is it a part of the State's case to show that the defendant is not within a statutory exception?
[1] I. It is true this court at an early date apparently embraced the so-called "physical location" rule which made determination of the question to depend entirely on the location of the exceptive provision in the statute. If found within the purview or enacting clause or in the clause creating the offense it was held the State must both allege and offer proof as a part of its case that the person accused, or the act he was accused of committing, was not within the exception; but if contained in a separate or subsequent clause or statute it was held a matter of defense. State v. Williams,
State v. Aiken, supra,
"If any person, with intent to produce the miscarriage * * * wilfully administer to her any drug * * * unless such miscarriageshall be necessary to save her life, he shall be imprisoned * * *." (Italics supplied.) Section 4759, Iowa, Code, 1897.
The opinion states:
"The exception contained in the statute is a part of the description of the offense and of the enacting clause embodied in the very section which defines the crime. Indeed, the exception is so incorporated with the prohibitive clause that one cannot be read without the other. In such cases, it is necessary that the indictment negative the exception. [Citing State v. Leeper, supra; State v. Van Vliet, supra; State v. Beneke, supra; and State v. Williams, supra.] Following these rules, it is generally held that an indictment for abortion must negative all exceptions found in the section of the statute defining the offense."
But we cannot reconcile all our cases with this simple formula. In State v. Schaeffer,
"It is a general rule, applicable to the trial of criminal cases, that, where there is an exception in a general statute, it is not incumbent on the prosecution to prove that the defendant is not within the exception."
The statute there involved provided that, "If any personwithout lawful authority wilfully dig up, disinter, remove, or carry away, any human body [italics supplied] * * * shall be punished * * *." (Section 4017, Iowa Code, 1873.) The opinion continues:
"The fact being peculiarly within the knowledge of the accused, it is incumbent on him to show that he is not criminally liable for the act because he is within the exception." *651
1 Greenl. Ev. 12, is quoted in support of the last statement. It is not clear whether the decision rests upon the stated "general rule" or upon the last-quoted statement, based on Greenleaf's pronouncement.
In State v. Boever,
"The defendant, as the possessor of liquor, was entitled to show, in defense, that the liquor found in his possession was legally in his possession. * * * No obligation rests upon the State to allege and prove the provisos, or to negative the exceptions in the instant indictment."
The rigid "physical location" rule was modified in State v. Kendig,
The opinion expressly accepts the reasoning in Hale v. State,
"When a statute contains provisoes and exceptions in distinct clauses it is not necessary to state in the indictment, that the defendant does not come within the exceptions * * *. Nor is it even necessary to allege that he is not within the benefit of its provisoes, though the purview should expressly notice them; as by saying that none shall do the act prohibited, except in the casesthereinafter excepted. For all these are matters of defence, which the prosecutor need not anticipate, but *652 which are more properly to come from the prisoner." (Italics supplied.)
[2] The opinion in the Kendig case definitely modifies the strict "physical location" rule (based simply on the position of the exception in the statute) by the following language, at page 168 of
"The general rule as to exceptions * * * is that where the exception * * * forms a portion of the description of the offense so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted, then it is necessary to negative the exception * * *. But, where the exception is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation; for it is a matter of defense. Hale v. State,
It is impossible to reconcile the language of all our decisions. Most of the confusion has grown out of the mistake of considering the position of the exception in the statute as conclusive in itself (e.g., State v. Burns, supra,
In most instances the application of the rule of physical location brings the right answer. But we have here an exception which is in the so-called enacting clause or purview of the statute as a mere reference to the real exception which must *653 be sought elsewhere in the Code. Seldom, if ever, could an exception of this kind be held to be a part, or one of the elements, of the offense.
We assume the words, "except under proceeding to destroy the same," refer to proceedings under chapter 751, Code, 1946 [chapter 617, Iowa Code, 1939]. Section 751, in that chapter [section 13441.03 (6), Code, 1939] expressly makes applicable to gambling devices (described in section
Our cases have repeatedly pointed out that such exceptions are not governed by the physical-location rule. In the early case of State v. Williams,
The opinion in State v. Stapp, supra,
It must be recognized at this point that the decisions in State v. Cochran,
Subsequent to these two decisions (State v. Cochran and State v. Burns, supra) the legislature enacted what is now section 695.17, Code, 1946 [section 12949, Code, 1939], providing that in such prosecutions proof that no permit had issued in the county where venue is laid makes a prima facie case. Because this subsequent legislation seems to recognize that the exception must be negatived we express no opinion as to future cases involving the charge of carrying concealed weapons.
[3] II. The information here expressly negatived the exception. The parties agree that fact is not controlling in determining whether evidence tending to prove the allegation was necessary as a part of the prosecution's case. If the allegation was surplusage it imposed no additional requirement of proof. State v. Healy,
We have cited and discussed cases involving pleading as well as proof on the general theory that whatever is required to be alleged in the indictment or information is a part of the State's case to prove. For our purposes here it is not necessary to notice possible cases in which the necessity of offering proof might not coincide exactly with the essential allegations of the indictment.
In view of our discussion in Division I we need not determine what effect, if any, our "Short Form Indictment Act" (section 773.2 et seq., Code, 1946, section 13732.01 et seq., Code, 1939) would otherwise have had. Upon the considerations heretofore stated, we think the district court erred in placing upon the prosecution the burden of producing evidence, as a part of its main case, to negative the contingency that defendant may have had possession of the described gambling devices "under proceeding to destroy same."
The case will be reversed but, of course, not remanded. — Reversed.
*655All JUSTICES concur.