¶1delivered tbe opinion of the court.
¶2Sutton was indicted under tbe 84th section of the 8th article of tbe “ Act concerning Crimes and Punishments,” approved March 27th, 1845. (R. C. p. 405.) He was convicted and fined, and, after an unsuccessful motion in arrest of judgment and for a new trial, appealed to this court. Tbe ground on which tbe motion in arrest of judgment was based, was tbe omission in tbe indictment of tbe negation that tbe grocery was kept open for the sale of drugs, medicines, provisions, or other articles of necessity.
¶3*378There is nothing in this objection. The rule is, that in pleading upon statutes, where there' is an exception in the enacting clause, the indictment must show that the defendant is not within the exemption ; but if there be an exception in a subsequent clause, that is matter' of defence, and the accused must show it to exempt himself. Here, the exception was not only omitted in the enacting clause, but was only coutained in the subsequent succeeding section of the act.
¶4There certainly was no error in the instructions given on behalf of the State. The second instruction ashed by the defendant was not so worded as to raise the question that seems to have been contemplated, and the evidence scarcely warranted it. If one lives in the house in which his grocery is kept, and his comfort or convenience requires the door of the grocery to be kept open, and it is kept open on that account, and not with any view to evade the law, or to allure customers, or to carry on his ordinary business, he does not violate the statute.
¶5The other judges concurring, the judgment will be affirmed.