52 Ind. 516 | Ind. | 1876
The appellant was convicted in the court below for carrying a concealed weapon.
The court, over a motion for a new trial, rendered judgment on the verdict. This ruling of the court is assigned for error.
It is, in the first place, contended that the verdict is not sustained by sufficient evidence, and the defect pointed out is this: that there was no evidence as to whether the appellant was or was not a traveller. The indictment alleged that he was not a traveller. If the burden of proof on this
“Where, in a statute, an exception or proviso qualifies the description of the offence, the general rule is, as has been seen, that the indictment should negative the exception or proviso. In such cases, when the subject of the exception relates to the defendant personally, or is peculiarly within his knowledge, the negative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the defendant, as matter of defence; but, on the other hand, if the subject of the averment do not relate personally to the defendant, or be not peculiarly within his knowledge, but either relate personally to the prosecutor, or be peculiarly within his knowledge, or at least be as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative. Thus it is incumbent on the defendant, in an indictment for selling liquor by the small, to prove he is licensed. So, informations upon the game laws must negatiye the defendant’s qualifications to kill game; but this negative need not be proved upon the part of the prosecution; on the contrary, the defendant must prove the affirmative of it as matter of defence. So, informations for selling ale without a license must negative the existence of a license, but the informer need not prove the negative. And the defendant, in an indictment for trading as a hawker and pedler without a license, must prove that he has a license.”
Bishop on Statutory Crimes, in section 1051, says:
“We have seen something of the necessity and nature of the averment, that the defendant was not authorized to make the sale. But must this negative averment, when made, be established by affirmative evidence on behalf of the prosecution? If we look at the question as one of principle, we
We think the exception relates to the appellant personally and is particularly within his knowledge. Besides, a majority of persons are not travellers. The presumption was, that the appellant was not a traveller, and if he desired to take himself out of the operation of the general rule, it was incumbent upon him to make the proof. We think the burden of proof was upon the appellant, and hence he can not rely upon a failure of proof.
We have read the evidence, and think it supports the verdict.
The judgment is affirmed, with costs.