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74 Mo. 549

State v. O'Brien

Supreme Court of Missouri

Decided October 15, 1881

Supreme Court of Missouri · decided 1881-10-15

<p>'Pleading, Criminal: exceptions in statutes. When an exception is contained in a statute defining an offense and constitutes a part of the offense, an indictment for such offense must negative the exception ; hut when the statute contains a proviso exempting a class therein referred to from the operation of the statute, an indictment need not negative the proviso. The accused must make the exemption a ground of defense. So Held, in reference to the proviso to section 1 of the act of 1877 in relation to the practice of medicine and surgery. Sess. Acts 1877, p. 343.</p>

Key passage — most relied on by later courts

““Whenever an exception is contained in the section defining an offense, and constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged. [State v. Meek, 70 Mo. 357 ; State v. Shiflett, 20 Mo. 415 .] But where, as in the case at bar, the section which defines the offense contains a proviso exempting a class therein referred to, from the operation of the statute, it is unnecessary to negative the proviso, but the exemption therein contained must be insisted on by way of defense, by the party accused. [State v. Cox, 32 Mo. 566 ; State v. Shiflett, 20 Mo. 417 , and authorities there cited.]””

quoted by 1 later decision, including State v. Humfeld

Relies on State v. Shiflett · State v. Cox

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1881-10-15

How this case has been cited

Cited by 24 later decisions — most recently October 1974

24 state decisions

701881189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Hough, J.

¶1The defendant was indicted for practicing-medicine in violation of section 1 of the act of April 28th, 1877, which is as follows : “ It shall hereafter be unlawful-for any person to practice medicine or surgery in this State who shall not have first received the degree of doctor of' medicine from a medical college or university duly established under and by virtue of the laws of the country in which such college or university is situated; and any person who shall violate the provisions of this section shall' be guilty of a misdemeanor, and upon conviction he shall be fined in a sum not less than $100 nor more than $500 provided, however, that this section shall not apply to any person who may now be authorized to practice medicine or surgery in this State by virtue of existing laws of the State in relation thereto.” The foregoing proviso refers to section 3 of the act of March 27th, 1874, which required all persons then practicing medicine, or who should commence to practice before the 1st day of September of said year, to register their names in the office of the clerk of the county in which they resided, and thereupon authorized them to practice without having received the degree of' doctor of medicine as provided by the 1st section of that act. The indictment before us did not negative the.proviso contained in section 1 of the act of 1877, and for-*551that reason it was held by the circuit court to be insufficient.

¶2This ruling was erroneous. Whenever an exception is contained in the section defining an offense, and constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged. State v. Meek, 71 Mo. loc. cit. 357; State v. Shiflett, 20 Mo. 415. But where, as in the case at bar, the section which defines the offense contains a proviso exempting a class therein referred to, from the operation of the statute, it is unnecessary to negative the proviso, but the exemption therein contained must be insisted on by way of defense, by the party accused. State v. Cox, 32 Mo. 566; State v. Shiflett, 20 Mo. 417, and authorities there cited. The judgment will be reversed and the cause remanded.

The other judges concur.
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