¶1Prosecution for retailing without license, under the liquor act of 1853. Conviction below.
¶2Neither the affidavit nor the information negatives that the liquor was sold for mechanical, medicinal, or culinary, &c., purposes. The section of said liquor act which prohibits retailing, provides “that no person shall retail spirituous liquors, except for sacramental, mechanical, chemical, medicinal or culinary purposes,” “without filing with the auditor his bond,” &c.
¶3The exception, which is very comprehensive, is contained, it will be observed, in the body of the prohibitory section; and there is no rule better settled than that in such cases the indictment, information, or complaint must negative it.
¶4This rule is too familiar to the profession to require a citation of authorities to prove its existence. See Chit. Crim. Law, vol. 1, p. 284. And Mr. Chitty remarks, same page, that in prosecutions upon penal statutes much greater strictness is required than in the case of an indictment; “for, in general,” he says, “it is necessary to show by negative averments, that the defendant is not within any of the provisoes or exceptions of the statute” itself in such prosecutions.
¶5The judgment is reversed. Cause remanded, &c.