Commonwealth v. Chase-Davidson Co.

OpinioN op the couBT by JUDGE WHITE Reversing. The appellees were charged by warrant in the police court of the city of Louisville, Ivy., charging that they had in their possession, and offered for sale, quail on the 28th day of October, 1899, contrary to the statutes. Upon trial in the police court a judgment of conviction was rendered, and an appeal was prosecuted to the circuit court. In the circuit court a jury was waived, and the case was submitted to the court upon proof. The circuit court adjudged appellees not guilty, and the Commonwealth appeals. There is no dispute as to the facts. The undisputed evidence is. that in December, 1898, appellees purchased In [238] the market' some 4,000 dozen quails, and placed them in cold storage. Some 800 dozen of these birds were on hand on October 28, 1899, and some of these birds were offered for sale to the prosecuting witness on that day. It was shown that the birds bought in December were all killed in the open season of 1898, and were kept over. On these facts being shown, the circuit court adjudged appellees to be not guilty. Section 1944, Kentucky Statutes, reads: “No. person shall catch, kill or pursue with such intent, or have the same in possession after it has been caught or killed, any quail, partridge or pheasant, between the first day of January and the fifteenth day of November in each year.” Section 1949: “Any person guilty of violating any o.f the provisions of either of the preceding sections shall be fined for each offense not less than five nor more than twenty-five dollars.” Section 1950: “The possession of any of the animals or birds intended to be protected by this law within the periods for which their killing or pursuit is hereby prohibited, shall be prima facie evidence that the said animal or bird was unlawfully caught or killed, and the possession thereof unlawful.” Section 1951: “Any person exposing for sale any of the animals or birds intended to be protected by this law within the periods for which the taking or killing thereof is hereby prohibited shall, for each animal or bird so exposed for sale, be subject to the same penalty as herein provided for the unlawful killing or taking of such animal or bird.” It is under section 1951, supra, that this prosecution is had. It is earnestly insisted for appellees (and this is the view taken by the learned trial judge) that the object and purpose of the statute are to protect the birds of the State and to prohibit their capture or killing except for the short [239] space from November 15th to the end of the year, and that during this period any and all persons may kill and capture at pleasure, and in such quantities as they choose. It is also insisted that, the meaning and intent of the statute as to the capture or killing of the birds having been complied with, the birds killed in the open season may be kept and eaten by the person who killed them, or that he may sell them at any time, and that it also follows that any person may keep, store, or expose for sale birds that have been killed in the open season. To sustain this view, section 1950 is referred to, which says that the possession within the closed season shall be prima facie evidence that the bird was unlawfully caught or killed. It is in. sisted that making the possession prima fade evidence of the unlawful killing necessarily means that the prima fads case thus shown may be rebutted by showing that the birds were caught or killed in the open season. We assent to the proposition that, as to section 1950, proof may be introduced to show that the birds in posses- ' sion were caught or killed in the open season, and that, if they were caught or killed in the open season, the possession of the birds is not prohibited. But as to the sale or offering for sale during the closed season (i. >s., between January 1st and November 15th) a different section is provided, and the rule of evidence is not the same. This section (1951) prohibits the -sale of birds within the closed season, without regard to when or where they were killed. As to the proposed sale, there is no prima fads case to be rebutted, but the plain statute is that the birds shall not be exposed for sale within the prohibited periods. That they may be lawfully kept in possession under section 1950, having been killed in the open season, is no reason why they may be sold igi violation of section 1951. The [240] reason for this difference in the two sections is manifest. The legislators may have been willing to permit a person to kill and store for his own use all the birds-he desired during the open season, or may have been willing for any person to purchase and store for his own use 'birds killed in open season, yet were not willing to permit a wholesale slaughter of birds during the open season, and their storage and sale at any season. To prohibit the sale except in the open season would to a very large extent prevent the destruction of those birds and animals which the law intended to protect. If the intention of the statute was to protect the birds and animals of the country, it seems to us that section 1951, which appellees have violated, is the most potent for good. We are of opinion that appellees have violated both the letter and spirit of the law enacted for the protection of the quail of the State, and that the judgment of acquittal herein is erroneous. Judgment reversed, and cause remanded for a new trial, and for proceedings consistent herewith.