State v. Keggon

*20 Smith, J. It is evident that by tlie expression “ not licensed,” is meant “ not appointed agent ” for the sale of spirituous liquors. The question raised here has frequently been before this court, and each time it has been settled against the position taken by this respondent— State v. Simons, 17 N. H. 83; State v. Foster, 28 N. H. 348; State v. McGlynn, 34 N. H. 422 ; State v. Shaw, 35 N. H. 217 ; and the general current of authorities is the same way. 1 Gr. Ev., sec. 79 and authorities there cited, in note 3 ; — see, also, authorities cited by Austin, attorney-general, in Commonwealth v. Thurlow, 24 Pick. 374. In State v. Perkins, 53 N. H. 435, the court were equally divided upon this question. The principle settled by these decisions is, that where the subject-matter of the negative averment lies peculiarly within the knowledge of tlie other party, the averment is taken as true unless disproved by that party. The decisions assume that, if the appointment of agent for tlie sale of liquors exists, the respondent can easily show it without inconvenience, and for that reason the averment that the respondent was not such agent, unless disproved, is taken to be true, and the government is not bound to prove it. The rule has become so well settled in this state, that I do not think it useful at this time to inquire whether the reason for it is or is not well founded. The averment is necessary to complete tlie description of tlie offence under the laws of this state. If the question raised by the bill of exceptions in this case were now before the court for the first time, probably I might come to a different conclusion from that heretofore reached; but the question is too firmly settled in this state to be overturned.