Negativing Statutory Exceptions
Neither the indictment nor the information is required to
matter such as the statute of limitations or exceptions to the
class of persons
or objects set out in the statutes defining the offense. "It has
established, however, that an indictment need not negative a
exception." United States v. Polan, 970 F.2d 1280, 1282 (3d
cert. denied, 507 U.S. 953 (1993).|
[I]t has come to be a settled rule that an indictment
pleading founded on a general provision defining the elements of an
. . need not negative the matter of an exception made by a proviso
distinct clause . . . [I]t is incumbent on one who relies on such
to set it up and establish it.
McKelvey v. United States, 260 U.S. 353, 357 (1922);
v. Cook, 84 U.S. 168 (1872).
Thus, an indictment for assault with a dangerous weapon need
the statute, also allege that the assault was "without just cause."
United States v. Messina, 481 F.2d 878 (2d Cir.), cert.
U.S. 974 (1973); Hockenberry v. United States, 422
F.2d 171 (9th
Cir. 1970). In United States v. Outler, 659 F.2d 1306 (5th
cert. denied, 455 U.S. 950 (1981), the court, though,
government's argument that a lack of legitimate medical reason was
exception rather than an essential element of a count charging a
prescribing drugs in violation of 21 U.S.C. § 841.
[cited in Criminal Resource Manual 1375]