#### STATE v. BURTON.

(Filed March 21, 1905.)

Indictments — Provisos—Vinous Liquors — Time as Essence of Offense — Objection to Venue — How Talcen.

1. An indictment charging the deiendant with violating an act forbidding the sale or manufacture of vinous liquors in a certain county, section 1 thereof concluding with a proviso that the act shall not apply to wine or cider manufactured from fruit raised on the lands of the person manufacturing same, need not aver that the liquors sold were .not manufactured from fruit raised on the lands of the defendant, and a motion to quash for that no such averment was made, was properly denied.

2. There are two kinds of provisos — the one, in the nature of an exception, which withdraws the case provided for from the operation of the act; the other, adding a qualification whereby a case is brought within that operation. When the proviso is of the first kind, it is not necessary in an indictment to negative the proviso, it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description, the indictment must bring the case within the proviso.

*5763. in an indictment for selling liquor without license, a demurrer to the 'evidence on the ground that it was not shown upon what day, in August preceding, the sale was made, was properly overruled, as time was not of the essence of the offense.

4. Under section 1194 of The Code, an objection to venue must be taken by plea in abatement, and a demurrer to the evidence on this ground was properly overruled.

INDICTMENT against Joel Burton, beard bj'Judge M. H. Justice and a jury, at tbe January Term, 1905, of the Superior Court of Duplin County. From a verdict of guilty and judgment thereon, the defendant appealed.

Robert D. Gilmer, Attorney-General, for the State.

■ Kerr & Gavin for the defendant.

Connor, J.

The defendant was charged with violating Chapter 347, Public Laws 1901, forbidding the sale or manufacture of spirituous, vinous or malt liquors in Duplin County. Section 1 of the Act concludes: “Provided: That this Act shall not be so construed as to apply to wine or eider manufactured from grapes, berries or fruit raised on the lands of the person so manufacturing the same.” The Bill of Indictment charged the sale of vinous liquors. It contained no averment that the liquors sold were not manufactured from grapes raised on the lands of the defendant.

Defendant made a motion to quash, for that no such averment was made. Motion denied — defendant excepted. His Honor properly denied the motion. The principle is well stated by Henderson, C. J., in State v. Norman, 13 N. C., 222,,“We find in the Act of our Legislature two kinds of provisos — the one, in the nature of an exception, which withdraws the case provided for from the operation of the Act; the other, adding a qualification whereby a case is brought within that operation. When the proviso is of the first kind, it is not necessary in an indictment or other charge founded *577•upon tke Act to negative the proviso, it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description, the indictment must bring the case within the proviso.” In Norman’s case the act defining and fixing the punishment for bigamy contained in the same section the proviso. Ashe, J., in State v. Heaton, 81 N. C., 542, says: “It is a well established principle that if there be an exception contained in a clause of the Act which creates the offense, the indictment must show negatively that the subject of the indictment does not come within the exception, but when the exception or proviso is in a subsequent clause of the statute, as in this case, it is a matter of defense for the defendant and need not be negatived in the pleading.” The defendant presses upon our attention the language of Davis, J., in State v. Hazell, 100 N. C., 471. It is only suggested therein that the indictment should contain the negative averment. The language of the statute under which the indictment was drawn was different from that under consideration —in any event, the case does not decide the point. The defendant misconstrues the words, “same clause,” used in many’ of the opinions, by giving to it the same signification as same section. The line separating the two classes of eases is not made dependent upon the mere location of the excepting language, but is dependent upon its office in describing the offense. This is illustrated in State v. Holder, 133 N. C., 713. The indictment did not negative the fact that defendant had a license. This was a fatal defect because the statute defines the offense to be “retailing without license.” As in State v. Krider, 78 N. C., 841, an indictment charging the larceny of fish was held defective for that it did not charge that they had been reclaimed and were valuable for food, etc., — these words being an essential part of the statutory description of the offense. The principle is applied in State v. Liles, 78 N. C., 496.

A large ^number of cases are to be found in our Reports *578sustaining the ruling of His Honor. The defendant pleaded not guilty. The State introduced one Lanier, who testified that be purchased wine from defendant several times during the year 1904 — sometime in August — paid for it, etc. The defendant demurred to the evidence. The court overruled the demurrer and defendant excepted. The court charged the jury that it devolved upon the State to satisfy them -beyond a reasonable doubt that defendant sold witness vinous liquors within two years before the finding of the bill, for gain, in Duplin County. Defendant excepted — verdict of guilty. Erom a judgment upon the verdict, defendant appealed.

The grounds of the demurrer are: 1st. That it was not shown upon what day in August the sale was made. There is no merit in the point. Time is" not of the essence of the offense. State v. Jones, 80 N. C., 415. 2nd. That it did not appear that the sale was in Dupin County. Code, section 1194, expressly provides -that this objection* must be taken by plea in abatement. State v. Holder, 133 N. C., 709. The authorities are uniform and fully sttstain His Honor’s ruling. The objection that there was no evidence that the offense was committed in the State cannot be sustained on the demurrer to the evidence, or the request to charge that the burden was on the State. It is open to the defendant to show it, if be can, upon the plea of not guilty. State v. Mitchell, 83 N. C., 674. The court expressly left the question to the jury whether the defendant sold “vinous liquors.” State v. Scott, 116 N. C., 1012. We have examined the record and defendant’s brief and find

No Error.