State v. Bucknam

Haskell, ,T. The complaints charge the defendants with having in their possession, at one time during the open season when deer may be lawfully killed, eighty-nine carcasses of deer, they not being market-men or provision dealers within the terms of the statute. The only question presented is whether the statute, R. S., c. 30, § 12, as amended by the act of 1891, c. 95, § 4, makes such possession an offense. It reads as follows : "No person shall take, kill, destroy or have in possession between the first days of October and Jauuary more than one moose, two caribou and three deer, under a penalty of one hundred dollars for every moose, and forty dollars for every caribou or deer, or parts.thereof, so taken, killed, destroyed or in possession in excess of said number. Whoever has in posses [392] sion, except alive more than the aforesaid number of moose, caribou or deer or parts thereof, shall be deemed to have killed or destroyed them in violation,of law. But nothing in this section shall prevent any market-man or provision dealer, having an established place of business in this State, from' purchasing and having in possession at his said place of business, not exceeding one moose, two caribou and three deer lawfully caught, killed or destroyed, or any part thereof, at one time, and selling the same at retail in open season to his local customers.” The object of the statute is to prevent the decimation of game by limiting the time when it may be taken or killed to the months of October, November and December; in each year. During these months, under certain restrictions unimportant here, deer, moose and caribou may be lawfully taken or killed, and the various provisions of the statute aim to compass this result. They do not .intend to interfere with foreign game, dead or alive, brought within the State, at any time, or with game lawfully taken or killed here. While the enactment, by its letter, makes the possession of more than one moose, two caribou and three deer at any time an offense, the context of it must not be overlooked in determining the scope and meaning of the whole statute. But one penalty for killing, having in possession and transporting could have been intended ; and that applies to the illegal capture of the game. The other provisions were intended to aid in the enforcement of that one, by making the possession evidence of illegal capture, and compel the person charged to explain his possession of what would directly point to an illegal taking of the game. In other words, compel him to have or handle game illegally taken or killed, by any person, at his peril. Game illegally taken or killed subjects the possessor of it to the penalty for its illegal taking, just as if he had illegally taken it himself. This interpretation best comports with the true intent and purpose of the statute, and works out a reasonable and just application of its provisions, at the same time obviating various difficulties in the way of a different construction of it. [393] Nor is this view without authority. In Allen v. Young, 76 Maine, 80, it was held that, although this very statute prohibited the transportation of the hide or carcass of deer, moose or caribou, during close time, yet, such transportation was not illegal if the game had been lawfully killed. The court say : "The question is whether, if deer are killed during the time when it is lawful to do so, it is a crime to carry or transport the hides or carcasses from place to place in this state during the time when it is unlawful to kill them. "We think it is not. True, the transportation at such a time seems to be within the letter of the lawr; but we think such could not have been the intention of the legislature. We can see no possible motive for making such transportation a crime. We can readily see that it wrould be in furtherance of the purposes of the act to make such transportation prima facie evidence of guilt, and thus throw the burden of proof upon the party to show his innocence, as is done in section five with respect to possession ; but we fail to see any motive for making the mere transportation of the- hide or carcass of a deer from one place to another a crime when the deer has been lawfully killed and is lawfully in the possession of the one who transports it. Certainly one may reasonably doubt whether such could have been the intention of the legislature; and the act being a penal one, a reasonable doubt is sufficient to make it the duty of the court to adopt the more lenient interpretation, and construe the term 'such animal,’ as meaning an animal unlawfully killed, as was done in construing a similar statute in Com. v. Hall, 128 Mass. 410.” See also Bennett v. American Express Co. 83 Maine, 236. In Michigan, 71 Mich. 325, People v. O'Neil, the defendant was convicted, in the lower court, for having in possession for the purpose of selling á large number of quail in violation of a statute that prohibits selling, exposing for sale, or having in possession for the purpose of selling such birds after eight days from the time when the killing of such birds was prohibited ; and on certiorari to the supreme court the conviction was reversed by construing the statute to apply to birds only, killed [394] in violation of law. The court says : "So construed the statute is reasonably adapted to carry out its objects, and is free from all constitutional difficulty.” The court then quotes at length from Allen v. Young, supra, with approval. Campbell, J., in a concurring note says: "I do not think it would be competent for the legislature to punish the possession of game which was lawfully captured or killed. Having become private property, it cannot be destroyed or confiscated, unless it becomes unfit for use, any more than other property can be destroyed. I do not think the cases to the contrary are reasonable or sound.” In Pennsylvania, 139 Pa. 298, Commonwealth v. Wilkinson, the defendant was convicted of having in his possession, during close time, twenty quail that were not killed in the state, but had been lawfully killed in Missouri and brought into the state. The indictment was under a statute that prohibited the killing, exposing for sale, or having in possession, after the same had been killed, quail, during a specified close time of each year. The court reversed the conviction upon the ground that the act applied only to quail killed in the state out of season. The court says : "A careful reading of the language of the act shows that it applies only to game killed in this State out of season.” . . . "The meaning of the act, as we view it, is that no quail shall be killed in this State between the dates specified, and no person shall have in his possession, or offer for sale any quail so killed in this State.” In Oregon, 21 L. R. A. 478, State v. McGuire, the defendants were prosecuted for having in possession and offering for sale certain salmon during close time, under a statute that prohibited the same. The defense was that the salmon had been taken in open time and kept in cold storage for sale in close time when they would bring an enhanced price. This defense was excluded in the trial courts and convictions ordered. On appeal, the decision below was reversed upon the ground that the act applied only to salmon illegally taken. Allen v. Young, supra, was cited with approval by the court and the opinion is an elaborate one. There are cases contra. Phelps v. Racey, 60 N. Y. 10; [395] Magner v. People, 97 Ill. 333. We are aware of our own decision, Allen v. Leighton, 87 Maine, 206, but do not regard that as an authority upon the question here considered. This question was not considered in that case. Complaints quashed.