5.23 - 4. Exceptions And Provisos

• Jurisdiction: New York

4. Exceptions and Provisos

An exception excludes something from a statute absolutely and by express words in the enacting clause, while a provisio defeats its operation conditionally. An exception takes out of the statute something that otherwise would be part of the subject matter; a provisio avoids things by way of defeasance or excuse. An exception is generally a part of the enactment itself, absolutely excluding from its operation some subject or thing that otherwise would fall within its scope; but when the enactment is modified by engrafting upon it a new provision, by way of amendment providing conditionally for a new case, it is in the nature of a provisio. ⁷¹⁴

Allegations in an indictment are determined by the statute defining the crime. If the defining statute contains an exception, the indictment must allege that the crime is not within the exception.⁷¹⁵ If the “exception,” really a proviso, is found outside the statute, it is a matter to be raised in defense generally or by affirmative defense. A felony indictment count for possession of a gun will include an ending...