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statute alleges that the liquors possessed by defendant were not so prescribed, the prosecution need offer no evidence on the point, but the onus probandi is upon the defendant to show, as a fact peculiarly within his own knowledge, that he had a physician's prescription to have the liquors in his possession.

(3) SAME IN ANY QUANTITY" MERE SURPLUSAGE.

The words in any quantity" after the word liquors" in said subdivision of section 30 of the Liquor Tax Law are mere surplusage, and it must be held that the legislative intent was to prohibit the possession of liquor.

(4) SAME LIQUOR TAX LAW DOES NOT VIOLATE STATE OR FEDERAL CON

STITUTION.

The provision of subdivision P of section 30 of the Liquor Tax Law that it shall not be lawful for a person to have liquors in any quantity in his possession in any city or town where trafficking in liquors is prohibited under subdivisions 1, 2 and 3 of section 8 of the Liquor Tax Law, except where prescribed by a duly licensed physician, etc., violates neither section 6 of article I of the State Constitution nor the fourteenth amendment to the Federal Constitution; nor does it deprive the citizen of liberty or property within the guarantees of those instruments.

MOTION in arrest of judgment and for a new trial.

Defendant, Edward M. Willi, was indicted by a grand jury of the county of Delaware for violation of subdivision P of section 30 of the Liquor Tax Law for having in his possession in the town of Hancock in said county on or about the 7th day of April, 1919, four gallons of whiskey, the said town of Hancock then being a town in which the business of trafficking in liquors under subdivisions 1, 2 and 3 of section 8 of the Liquor Tax Law was prohibited by the result of a local option vote.

The defendant was duly tried and convicted at a term of the Delaware County Court before a jury. The evidence fully established possession of the liquor in question by defendant and that the town of Hancock was a dry town. No evidence was offered by defendant. At the close of the evidence a motion was made to discharge the defendant and dismiss the indictment, which was denied. After the rendition of the verdict of the jury, the defendant moved upon the same grounds

that judgment be arrested and the court grant a new trial upon the ground the verdict was contrary to law. This motion was

entertained.

Defendant's motion is based substantially upon the following grounds:

First. That the People failed to prove facts sufficient to convict the defendant of the crime alleged in the indictment or of any crime.

Second. That the People failed to prove that the liquor in the possession of defendant was not prescribed by a duly licensed physician for the medicinal use of defendant or for some other person for which such liquors were duly prescribed.

Third. That the People failed to prove that the liquors found in defendant's possession were not manufactured by defendant and stored by him as authorized and permitted by subdivision P of section 30 of the Liquor Tax Law.

Fourth. That the statute charged in the indictment to have been violated is unenforceable and void because of uncertainty, because it does not define the amount of liquor which constitutes the quantity which a person is permitted to possess.

Fifth. That the provision of the statute which the indictment charges has been violated is unconstitutional, being in violation of section 6 of article 1 of the Constitution of the State of New York, in that it deprives a person of liberty and property without due process of law.

E. E. Conlon, for motion.

H. J. Hewitt, district attorney, opposed.

MCNAUGHT, J.:

The grounds upon which the motion of defendant is based are practically that the evidence was insufficient to convict, and in support of this contention two propositions are seriously and earnestly urged by the learned counsel for the defendant.

Upon these two propositions the determination of the motion depends. It is contended, first, that it was incumbent upon the part of the people to prove that the liquor in the possession of the defendant was not " prescribed by a duly licensed physician for the medicinal use of the defendant or of some other person for whom such liquors were so prescribed." It is urged that the indictment having contained this negative averment, the people were bound to prove the defendant did not possess such prescription.

The second proposition which is seriously urged is that the statute is unconstitutional in that it deprives a person of liberty and property without due process of law in violation of section 6 of article I of the Constitution of the State of New York.

Subdivision P of section 30 of the Liquor Tax Law provides as follows: "It shall not be lawful for any person, persons or corporation, either having or not having paid a tax as provided in section eight of this chapter, and either holding or not holding a liquor tax certificate issued under this chapter, to sell, offer, or expose for sale or give away liquors in any quantity, to be taken away from the premises where sold, if such person, persons or corporations shall have knowledge or shall have reason to believe that such liquors are to be sold, delivered or given away to or by any person in a city or town wherein the business of trafficking in liquors under subdivisions one, two and three of such section eight is prohibited by reason of the result of a vote on local option questions, and it shall not be lawful for a person to have liquors in any quantity in his possession in any city or town where trafficking in liquors is so prohibited under such subdivisions, except when prescribed by a duly licensed physician for the medicinal use of such person or of some other person for whom such liquors were SO prescribed."

The provisions referred to in subdivision P are all contained in one sentence. Under this subdivision it is unlawful to possess liquors in dry territory unless prescribed by a physician.

It was clearly incumbent upon the people in an indictment charging a violation of subdivision P to allege that the liquors possessed by the defendant were not prescribed as required by such subdivision and the indictment so charges.

It is undoubtedly a general rule of law that an exception in the enacting part of a statute must be negatived in pleading, while a proviso need not, and where an exception is incorporated in the body of the clause of the statute, he who pleads the cause ought to plead the exception. (Harris v. White, 81

N. Y. 532.)

It is well settled that if exceptions are stated in the enacting clause, it is necessary to negative them in order that the description of the crime may correspond with the statute, but if there be an exception in a subsequent clause or subsequent statute, that is a matter of defense to be shown by the defendant. (Jefferson v. People, 101 N. Y. 19; Rowell v. Janvrin, 151 id. 60; People v. Stedeker, 175 id. 57, 67, 17 N. Y. Crim. 326.)

The sole question in reference to this contention on the part of the defendant is whether or not, having negatived the excep tion in the indictment, it was incumbent upon the people to prove the defendant did not possess a physician's prescription.

Many authorities may be found, both modern and ancient, which tend to sustain both the position of the defendant and of the People in reference to this proposition. It is not deemed necessary to refer to them at length.

To constitute a crime for violation of subdivision P of section 30 of the Liquor Tax Law, the necessary ingredients are (a) the possession of liquor in any quantity; (b) that the liquor is so possessed in a city or town where trafficking is prohibited as the result of a local option vote, and (c) that the person having such liquors in his possession has no prescription therefor from a duly licensed physician.

The failure on the part of the People, in an indictment for a violation of such subdivision P, to allege each of the above elements would render the indictment fatally defective, but

whether the People must make proof of every ingredient so required to be pleaded presents a different question.

It is a well-established rule that where the negative of an issue does not permit of direct proof or where the facts come more immediately within the knowledge of the defendant, the onus probandi rests upon him. (People v. Grass, 79 Misc. Rep. 457; Fleming v. People, 27 N. Y. 329; People v. Kibler, 106 id. 321; Jefferson v. People, 101 id. 19; People v. Briggs, 114 id. 56; People v. Weldon, 111 id. 569.)

This doctrine is illustrated in the cases of practicing medicine without a license and selling liquors without a license, and in neither case need the prosecution prove the defendant had no license. (Cases cited supra; People v. Nyce, 34 Hun, 298; People v. Maxwell, 83 id. 157; People v. Somme, 120 App. Div. 20.)

The provision in question is analogous to section 1897 of the Penal Law, paragraph 4 of which provides that no person over sixteen years shall carry any pistol or revolver concealed upon his person without a written license therefor.

It has been distinctly held in the case of People v. Grass (79 Misc. Rep. 457) that upon an indictment for violation of such section, it is not incumbent upon the prosecution to prove that no license was issued to the defendant.

The Conservation Law provides (section 185) that no person shall hunt without a license except as provided under such section, and then sets forth certain exceptions, among which is a provision that a person may hunt upon his own land without a license.

The Appellate Division in this department in the case of People v. Ramsey (179 App. Div. 523; appeal dismissed, 223 N. Y. 583), held it was not necessary in an information for a violation of section 185 of the Conservation Law to allege the defendant was not within the exception specified in such section.

Whether the defendant possessed a physician's prescription

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