Summary of Opinion: Smith v. Commonwealth

Factual and Procedural Background

Fred Smith was convicted in the Circuit Court of Rockcastle County, R.C. Tartar, J., of carrying concealed a deadly weapon on or about his person, and sentenced to two years' confinement in the penitentiary. Smith and three companions were arrested on another charge; when searched a .45-calibre pistol was found on Smith's person. Two arresting officers testified that the pistol was concealed. Smith appealed, contending that the trial court should have peremptorily instructed the jury to find him not guilty because the Commonwealth failed to introduce any proof that he was not within the statutory exception contained in the clause defining the offense. The Court of Appeals (Judge Rees) affirmed the conviction.

Legal Issues Presented

Whether the prosecution was required to prove that the defendant was not within the exception incorporated in the clause of the statute defining the crime of carrying a concealed deadly weapon.
Whether, under the statutory framework and prior decisions (and the 1942 amendment to section 126 of the Criminal Code of Practice), the burden of proof as to the excepted status rests on the defendant.

Arguments of the Parties

Appellant's Arguments

The trial court should have instructed the jury to find the appellant not guilty because the Commonwealth failed to introduce any proof showing that he was not within the exception incorporated in the clause of the statute defining the crime.

The opinion does not contain a detailed account of the appellee's (Commonwealth's) separate arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
153 A.L.R. 1218	Referenced as an annotation showing extensive judicial discussion of the rule concerning exceptions incorporated in the clause defining a criminal offense.	Used to indicate the rule has been the subject of much judicial discussion; cited as background authority for the historical development of the rule.
Kentucky Utilities Co. v. Commonwealth, 274 Ky. 151, 118 S.W.2d 158	Earlier recognition by this court of the rule that when an exception is in the clause defining the offense the prosecution must allege the negative in the indictment.	Identified as part of the court's pre-1942 approach to construing criminal statutes with exceptions in the defining clause.
Commonwealth v. Louisville N. R. Co., 140 Ky. 21, 130 S.W. 798	Early decision relied on for the rule that the prosecution must allege and prove the defendant is not within the exception when it is in the clause defining the crime.	Listed among the early decisions that served as precedent for the general rule.
Commonwealth v. Kenner, 50 Ky. 1, 11 B. Mon. 1	Another early decision cited as precedent for the general rule regarding exceptions in defining clauses of criminal statutes.	Included with other early cases illustrating the historical origin and adoption of the general rule.
Smith v. Commonwealth, 196 Ky. 188, 244 S.W. 407, 408	Establishes the qualification to the general rule: where the exempting fact is peculiarly within the defendant's knowledge, the burden of going forward with evidence is on the defendant.	Applied as the controlling qualification here: because the exempting fact may be peculiarly within the defendant's knowledge, a prima facie case is made by the Commonwealth and the defendant must disprove the presumed negative.
Gainbill v. Commonwealth, 142 Ky. 312, 134 S.W. 160, 161	Holds that when it is unnecessary for the Commonwealth to allege that the defendant does not come within an excluded class, the Commonwealth is not required to offer proof to that effect.	Used to support the court's conclusion that, following the 1942 amendment, the Commonwealth need not negative the exception in the indictment and therefore is not required to prove the defendant is not within the excepted class.

Court's Reasoning and Analysis

The court began by stating the statutory provision at issue (KRS 435.230(1) defining the offense and subsection (2) listing persons who may carry concealed deadly weapons). The appellant relied on the established rule of statutory construction that when an exception is incorporated in the clause defining a crime, the prosecution must allege and prove that the accused is not within the exception. The court traced the origin and historical application of that rule in Kentucky decisions.

The court next identified a recognized qualification: when the exempting fact is peculiarly within the defendant's knowledge, the burden of producing evidence is on the defendant, because the Commonwealth's proof of the forbidden act creates a prima facie case and the negative averment is taken as true unless the defendant disproves it (citing Smith v. Commonwealth).

The court then considered the 1942 amendment to section 126 of the Criminal Code of Practice, which provides that no indictment shall be invalid merely because it fails to negative any exception, excuse, or proviso contained in the statute defining the offense. The court reasoned that, because the prosecution is no longer required to negative the exception in its indictment, the practical consequence is that the burden is on the defendant to introduce evidence tending to show he is in the excepted class. The court cited Gainbill v. Commonwealth to support the principle that the Commonwealth is not required to offer proof that the defendant does not come within an excluded class when it is unnecessary to allege that fact.

Applying these principles to the present facts—where officers testified that the pistol was concealed and no evidence was offered by the defendant to show he fell within an exception—the court concluded that the burden rested on the defendant and that the Commonwealth had made out a prima facie case of the offense.

Holding and Implications

Holding: The judgment of conviction was Affirmed.

Implications:

Direct effect: The appellant's conviction and two-year penitentiary sentence were upheld.
The court confirmed that, in light of the 1942 amendment to section 126 of the Criminal Code of Practice and prior decisions, the prosecution is not required to negative statutory exceptions in its indictment, and the burden rests on the defendant to produce evidence that he is within an excepted class—particularly where the exempting fact is peculiarly within the defendant's knowledge.
The opinion applies existing rules and statutory amendment to the facts of this case; it does not purport to announce a novel rule beyond that application.

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Smith v. Commonwealth

JUDGE REES

Affirming.

The appellant, Fred Smith, was convicted of the offense of carrying concealed a deadly weapon on or about his person, and his punishment was fixed at confinement in the penitentiary for a period of two years. Appellant and three companions were arrested on another charge, and when searched a 45-calibre pistol was found on appellant's person. The two arresting officers testified that the pistol was concealed. The sole contention made on this appeal is that the trial court should have peremptorily instructed the jury to find the appellant not guilty on the ground that the Commonwealth failed to introduce any proof to show that he was not within the exception incorporated in the clause of the statute defining the crime.

Subsection (1) of section 435.230 of the Kentucky Revised Statutes provides: "Any person, not expressly authorized by law, who carries concealed a deadly weapon, other than an ordinary pocket knife, on or about his person * * * shall be confined in the penitentiary for not less than two nor more than five years." Subsection (2) names numerous officers and others who may carry concealed deadly weapons on or about their persons. Appellant relies upon a familiar rule of statutory construction to the effect that where an exception is incorporated in the clause of a criminal statute defining the crime, it is incumbent upon the prosecution to allege in its indictment and to prove that the accused is not within the exception, but where the exception is in a subsequent clause or separate statute it is a matter of defense. It seems to have been based on the theory that when the exception is embodied in the clause defining the crime, it becomes, because of that fact alone, a part of the description of the offense. The rule originated in England, and the English decisions served as precedents in the early decisions in this country. It has been the source of much judicial discussion as a reference to the annotation in 153 A.L.R. 1218 will disclose. In construing criminal statutes in which the clause defining the crime contains an exception, this court, prior to the 1942 amendment to section 126 of the Criminal Code of Practice, uniformly recognized the rule that the prosecution must allege in its indictment that the defendant is not within the exception. Kentucky Utilities Co. v. Commonwealth, 274 Ky. 151, 118 S.W.2d 158; Commonwealth v. Louisville N. R. Co., 140 Ky. 21, 130 S.W. 798; Commonwealth v. Kenner, 50 Ky. 1, 11 B. Mon. 1. A qualification of the general rule that the prosecution must produce evidence that the accused is not within the exception negatived in the indictment is recognized by this and other courts, and that qualification is that the burden of going forward with the evidence is upon the accused where the exempting fact is peculiarly within his knowledge. Smith v. Commonwealth, 196 Ky. 188, 244 S.W. 407, 408. In discussing the qualification of the general rule, the court, in the Smith case, said: "In such instances when the commonwealth has proven an act which is forbidden to be done by statute, by all persons, except those of a particular class, or excepting certain qualified persons, a prima facie case is made out, and the negative averment is taken as true, unless disproved by the defendant. It is a general rule running through the law of evidence that where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the defendant, the burden of proving that such averment is not true rests upon him."

The present case, without giving any consideration to the 1942 amendment to section 126 of the Criminal Code of Practice, falls within this qualification of the general rule. Section 126 of the Criminal Code of Practice, was amended in 1942 by adding several subsections, including subsection 2 which reads: "No indictment for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense."

Since the prosecution is not now required to negative the exception in its indictment, it necessarily follows that the burden is on the defendant to introduce evidence tending to show that he is in the excepted class. In Gainbill v. Commonwealth, 142 Ky. 312, 134 S.W. 160, 161, the court said: "It being unnecessary for the commonwealth to allege that the defendant does not come within a class excluded from the operation of the statute, it necessarily follows that the commonwealth is not required to offer any proof to that effect."

Judgment is affirmed.

SMITH v. COMMONWEALTH