2 Dakota 212 | Supreme Court Of The Territory Of Dakota | 1880
The defendant below and plaintiff in error here, John Scott, was indicted under chapter 60 of the Penal Code, for setting a prairie fire. (Revised Codes, 1877, p. 842.)
Sec. 2. “ That for the purposes of destroying any grass or stubble that may be on any piece of land at the time any person or persons commence to break or plow the same, it shall be lawful for such person or persons to set the same on fire at any time in the year: Provided, That at the time of setting such grass or stubble on fire there shall be a strip of land well plowed or burned over at least fifty feet in width, completely encompassing the place where such fire is set.”
Sec. 3. “ That if any fire set as provided in section 2 of this Act, should, by accident, and without any fault or neglect of the person or persons setting the same, get beyond his or their control, such person or persons shall be liable, as provided by section 1 of this Act, for all damages done by said fire, and not otherwise. But if such fire should by negligence, carelessness, or be intentionally permitted to spread beyond the bounds of said strip of land mentioned in section 2, then the person or persons setting such fire shall be liable both civilly and criminally, as provided in section 1 of this Act.”
The indictment charges: “ That .John Scott, in the county of Minnehaha • aforesaid, on the 19th day of October, 1878, certain prairie and stubble land there situated in section 28, township 102, range 50, willfully and unlawfully, did set on fire, contrary to the Statute, etc.”
To the indictment the defendant demurred, claiming that the facts stated therein did not constitute a public offense; and because it charges the defendant with having willfully set on fire certain prairie and stubble land, but does not charge that said fire was set without having “ a strip of land well ploived or burned over at least fifty fed in width completely encompassing the place where such fire was set.”
The defendant was convicted and sentenced.
The only question in the case presented to us for examination is, as to the sufficiency of the indictment. In other words, should the indictment have negatived the exceptions and provisos, which are referred to in the enacting clause of section 1, but not contained therein ?
Upon a careful examination of this question we find but little, if any, conflict of authority. It was justly said in the case of Smith v. Moore, 6 Greenleaf, 274, that on this subject, “ there seems to be many shadowy distinctions, the sound reasoning and good sense of which are not easily discoverable.” The general rule is: If there is an exception in the enacting clause, the party must negative the exception, and state in the indictment that the defendant is not within it; but if there be an exception in a subsequent clause, or subsequent section of the Statute, it is a matter of defense, and is to be shown by the other party. The rule is founded on the general principle, that the indictment must contain the statement of those facts which constitute an offense under the Statute. A prima facie case must be stated; and it is for the other party for whom matter of excuse exists, to bring it forward in his defense. In saying that an exception must be negatived when made in the enacting clause, reference is not made to sections of the Statute, as they are divided in the Act; nor is it meant, that because the exceptions are contained in the section containing the enactment, it must for that reason be negatived. That is not the meaning of the rule. The question is, whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the definition or description of the offense, for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. “ It is the nature of the exception and not its location,” which determines the question. Neither does the question depend upon any distinction
The Court in United States v. Cook, criticising the opinion in Commonwealth v. Hart, says : “When it is said that the rule of pleading a Statute which contains an exception is the same as that applied in pleading a private instrument of contract, that if such an instrument contains in it, first, a general clause, and after-wards a separate and distinct clause which has the effect of taking out of the general clause something that otherwise would be included in it, a party relying upon the general clause in pleading may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but if the exception itself is incorporated in the general clause then the party relying on the general clause must, in pleading, state the general clause together with the exception,” which appears to be correct; but the reasons assigned for the alternative branch of the rule are not quite satisfactory, as they appear to overlook the important fact in the supposed case that the exception itself is supposed to be incorporated in the general clause.
Where the exception itself is incorporated in the general clause, as is supposed in the alternative rule there laid down, then it is correct to say, whether speaking of a Statute or private contract, that unless the exception in the general clause is negatived in pleading the clause, no offense or no cause of action, will appear in the indictment or declaration when compared with the Statute or contract; but when the exception or proviso is in a subsequent substantive clause, the case contemplated in the enacting or general clause may be fully stated without negativing the exception
It is made apparent by these comments that the Supreme Court of the United States does not regard that as good law; is dissatisfied with the reasons assigned for the alternative branch of the rule, and is under the necessity of following it into the realm of imagination for a supposed case that does not bring it into line.
Apply the rules laid down in United States v. Cook to the case before the court and all difficulty is removed.
To illustrate: The offense in section one of the Code, supra, is clearly defined, and it is so entirely separable from the exception in section two that all the ingredients constituting it may be accurately stated without reference to the exception; i. e., if any person shall set on fire any prairie lands in either of the months in the year (except July and August) he shall be deemed guilty. This is simple and easy of comprehension without reference to matters dehors.
The second is a substantive section; i. e., any person at the time he desires to break his land for the purpose of destroying the stubble thereon, may set the same on fire any time in the year: Provided, he shall then have fifty feet in width plowed or burned over encompassing the place where the fire is set.
Section three is independent, except it refers to sections two and one, as follows: If the fire set as provided in section two should by negligence, etc., be permitted to spread beyond the bounds of the plowed or burned strip, then the person setting the fire shall be liable criminally as in section one.
Section four provides that any person, under certain circumstances, may set his prairie on fire “ at any time between the 20th day of April and the 20th day of June to kill grasshoppers.”
Section five refers to controlling and extinguishing the fire set as in section four, and section six is in relation to violating the provisions of section five.
We can readily conclude, from an examination of this Statute, that if the pleader should be obliged in order to bring himself within the rule, to negate the exception — 'if we may so call it — in
To illustrate the mode of procedure in the trial of a prosecution like the one at bar: The defendant is arraigned and pleads not guilty to the indictment. The prosecution introduces evidence which tends to prove the allegations therein. The defendant defends against such proof, that at the time' he set the fire he had some stubble land he was desirous of breaking and that he might lawfully set the fire, he burned over a strip of land at least fifty feet in width completely encompassing the place where the fire was set. The prosecution replies to this that the defendant intentionally or by negligence or carelessness permitted the fire to spread beyond the bounds of such strip.
Or, the defendant at this stage of the .proceedings, if such be the fact, could defend on the ground that he set the fire for the destruction of grasshoppers; that he gave the proper notices, etc. The prosecution could -reply that the defendant allowed the fire to spread beyond his control, and that he did not extinguish it the same day, as the Statute provides he should do.
I have thus exemplified the modus operanai under our Statute in regard to the setting of prairie fires, that it can the more readily be seen that the exceptions in other sections of the same chapter following the first, are not so incorporated with the enacting clause that the “ one can not be read without the otherand that the first section is complete in itself — from it alone the offense can “be accurately and clearly described in an indictment,” and it is for the accused to excuse himself by virtue of those other sections.
We are clear in the opinion that this indictment is sufficient, and the judgment of the Court below is
Affirmed,