248 F. 361 | D.R.I. | 1918
By demurrer to this indictment, which charges the keeping of a house of ill fame within five miles of the naval training station and of Ft. Adams, Newport, R. I., the defendant questions the constitutionality of section 13 of “An act to authorize the President fi> increase temporarily the military establishment of the United States,” known as the “Selective Service Act,” approved May 18, 1917, and also the constitutionality and legal validity of the orders, rules, and regulations made by the President, the Secretary of the Navy, and the Secretary of War in pursuance thereof.
These questions were fully considered in an opinion of the United States District Court for the Southern District of Ohio, Eastern Division, in United States v. Thomas Casey et al., 247 Fed. 362, printed in Bulletin No. 46, Interpretation of War Statutes.
In United States v. Cook, 17 Wall. 168, 173 (21 L. Ed. 538) it was said:
“ * * * if fkg language of the section defining the offense is so entirely separable from the; exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused.”
The character of tills exemption shows that it is impractical to cast upon the government the burden of negativing it. If the defendant is in fact amenable to and punishable under some Article of War, and thus has what is termed an “excusatory defense” against trial upon the indictment, the burden of alleging and establishing it is upon the defendant, and the indictment need not anticipate nor negative it. 1 Wharton’s Cr. L. 380; United States v. Carney (D. C.) 228 Fed. 163, 169. See, also, State v. Heffernan, 28 R. I. 477, 68 Atl. 364; State v. Flanagan, 25 R. I. 369, 55 Atl. 876; State v. Gallagher, 20 R. I. 266, 38 Atl. 655.
Demurrer overruled.