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226

Negativing Statutory Exceptions

Neither the indictment nor the information is required to negate defensive 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 long been established, however, that an indictment need not negative a statutory exception." United States v. Polan, 970 F.2d 1280, 1282 (3d Cir. 1992), cert. denied, 507 U.S. 953 (1993).

[I]t has come to be a settled rule that an indictment or other pleading founded on a general provision defining the elements of an offense, . . . need not negative the matter of an exception made by a proviso or other distinct clause . . . [I]t is incumbent on one who relies on such an exception to set it up and establish it.

McKelvey v. United States, 260 U.S. 353, 357 (1922); United States v. Cook, 84 U.S. 168 (1872).

Thus, an indictment for assault with a dangerous weapon need not, following the statute, also allege that the assault was "without just cause." See United States v. Messina, 481 F.2d 878 (2d Cir.), cert. denied, 414 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 Cir.), cert. denied, 455 U.S. 950 (1981), the court, though, rejected the government's argument that a lack of legitimate medical reason was a statutory exception rather than an essential element of a count charging a physician with prescribing drugs in violation of 21 U.S.C. § 841.

[cited in Criminal Resource Manual 1375]