Dickhaut v. State

Fowler, J., delivered the opinion of the Court. The defendant was indicted in the Criminal Court of Baltimore City on the charge of having violated sec. 13 of Art. 99 of the Code, as amended by the Act of 1894. The only allegation in the indictment is, that the defendant on the 24th October, 1896 — being a time within the prohibition of the statute — had in his possession ninety-six rabbits, contrary to the form of the Act of Assembly, &c., &c. To this indictment the defendant demurred, and his demurrer was overruled. He then filed a motion to quash the indictment — 460 — based upon the ground, first, that the statute is intended to apply only to persons who shall shoot or in any manner catch or kill any rabbit in the State of Maryland or have in possession any rabbit, so killed, &c.,.in this State within the prohibited time, and, second, that the indictment is defective because it does not so describe the defendant as to bring him within the class of persons to which the statute applies. This motion having also been overruled, the defendant pleaded non cul, was tried before the Court without a jury, convicted and sentenced. During the course of the trial the defendant proved that the rabbits found in his possession were shipped here from the State of West Virginia, where there is no law prohibiting the killing or catching of rabbits at any period of the year. But under the construction of the statute adopted by the learned Court below, this proof did not avail the defendant, for no matter when or where the game was killed, under that construction he was guilty, it having been held that proof of possession was conclusive proof of guilt. The record is before us on writ of error on the petition of the defendant. The question presented under the facts in this case, and especially upon the admitted fact that the rabbits found in the possession of the defendant were lawfully killed in West Virginia, and were brought here, is whether the defendant is guilty of any offence in having them in his possession at the time and place alleged. The answer to this question depends upon the construction of the provisions of the Code, sec, 13, Art. 99. As amended by the Act of 1894, ch. 404, it thus reads : “ No person shall shoot or in any manner catch, kill or have in possession * * * any rabbit between the 24th December and the first of November next ensuing.” It is such a plain proposition that when the Legislature prohibited the catching and killing of rabbits, it meant rabbits in this State, that no argument is necessary to establish it. If it was intended that the statute should operate beyond the limits of the State, it was simply void to that extent. — 461 — It would seem also to be clear that if the prohibition as to catching and killing was necessarily limited to rabbits caught and killed in this State, the prohibition against having any rabbits in possession would relate only to rabbits caught and killed here, for we are not to assume that the Legislature intended to do what it had no power to do, that is, to prohibit the killing of game in other States, unless such intention can be clearly gathered from the Act itself. But so far from any such intention having been expressed the most casual reading will demonstrate that all the prohibitions relate to the same limited class. If, as we have said the prohibition as to shooting and killing necessarily relates only to rabbits caught and killed in this State, the statute would read, “ No person shall shoot or in any manner catch, kill or have in possession any rabbits between the 24th December and the first of November ensuing, killed in this State between said days.” But if the construction of the State be correct, and if we assume as we must from the collocation of the words and the arrangement of the clauses of the sentence, that the same class of rabbits is referred to in each prohibition the statute would read thus : “ No person shall shoot or kill between the 24th December and the first of November ensuing in this or in any State any rabbit or have in his possession during said time any rabbit killed in this or any other State at any time.” But as we have said a prohibition as to killing game in other States is clearly inoperative and void, and therefore, we cannot impute to the Legistature an intention to enact such a prohibition. It follows, we think, that the prohibition as to possession relates to the same class that the prohibition as killing embraces, namely, rabbits killed, &c., in this State between the days named. Statutes similar to ours exist in both Pennsylvania and Massachusetts, and the Supreme Court of each of those States has held that it is no offence to have in possession within the prohibited time, game lawfully killed in and shipped from other States. Thus in the case of the Com — 462 — monwealth v. Wilkinson, 139 Pa. St. 298, the opinion of the Court was delivered by the former Chief Justice Paxon. The statute construed is as follows: “ No person shall kill or expose for sale or have in his possession after the same has been killed, any quail between” certain days. “The manifest object of this Act,” says the Chief Justice, “ was the preservation of game within this Commonwealth. We cannot assume that it was intended to preserve game elsewhere, and it would be a forced construction to hold that it was intended to exclude from our markets quail and other game killed in other States, where, by the law of those States, the killing of them is lawful. The law was not intended to have any extra territorial force, and if so, it would be nugatory. The construction claimed for the Act by the Commonwealth would render any one a criminal who lawfully killed quail in another State and brought it here for his own use. It would be prima facie evidence of a violation of the Act, and if he could not show as a defence, that he killed them outside the Commonwealth, he would have no defence at all. The matter is too plain to require elaboration.” And in the case of the Commonwealth v. Hall, 128 Mass. 412, a similar statute was construed in the same way. In delivering the opinion of the Court Chief Justice Gray said that the object of the statute was to protect the birds in Massachusetts. “ The mode in which the statute seeks to attain this object is by punishing the taking or killing of such birds in this Commonwealth during the time specified, or the buying or selling or having in possession in this Commonwealth during such time such birds so taken and killed, and by enacting that the possession in this Commonwealth at such times of any birds of the kind specified shall be prima facie evidence to convict, leaving it for the defendant to prove, if he can, that the birds found in his possession were not taken or killed in this Commonwealth at a prohibited time. So construed the statute is reasonably adapted to carry out its object, and is free from all constitutional difficulty.” It was conceded in — 463 — the Massachusetts case just cited, as it is in this case, that the game found-in the defendant’s possession was killed in another State, and for this reason it was held he was wrongly convicted, and the judgment was reversed. And finally the same view has been adopted by the Supreme Court of Oregon in a clear and well reasoned opinion by Chief Justice Lord in the case of State v. McGuire, 24 Oregon Rep. 367; S. C. 21 L. R. A. 478. The statute before the Court for construction is like ours, and we will quote only that part of it which relates to and prohibits the having in possession: “ It shall be unlawful for any person or persons to receive or have in his possession during the close seasons named in this Act any of” certain varieties of fish. In the lower Court it was held that under this Act the fact of possession was conclusive proof of guilt; but the Chief Justice says in delivering the opinion of the Court: “ The effect of this construction is to declare that in order to protect salmon in this State it was the intention of the statute to punish * * * the having in possession salmon during the prohibited season whether caught within or without the State — in a word that it was the intention of the Legislature to punish the mere possession of salmon which had been lawfully caught or taken. It ought to require plain, unambiguous and mandatory language to justify any Court in declaring fish and game lawfully caught or taken to be the subject of an offence by the simple possession of it. A construction leading to such injustice ought to be avoided if it can be reasonably done.” It was, therefore, held by the Supreme Court of Oregon, after citing and reviewing many of the leading cases, those sustaining as well as those opposed to the views it announced, that properly construed the Oregon statute does not relate to or embrace fish or game lawfully taken in another state and found in possession of any person in Oregon during the close season. There is much conflict of opinion upon this question and we shall not undertake to review or harmonize the numer — 464 — ous cases involving questions of construction and the constitutionality of the game laws of the various States. The cases have been collected by the learned annotator in the notes to the case of State v. McGuire, 21 L. R. A. 478. See also 13 L. R. A. 804; 29 L. R. A. 715. In a recent number of the Am. Law Reg. and Review, Oct. 1896, vol. 35, N. S. 649, will also be found some brief notes and a full collection of recent decisions. But the question of the constitutionality of our statute, because of its alleged conflict with the interstate commerce clause of the United States (Art. 1, sec. 8), we need not consider here, for as we have already said, it is clear that, when properly construed, it has no relation whatever to game lawfully killed out of this State, and brought here for use or for sale. It was contended that the indictment is defective because it did not sufficiently describe the defendant and failed to allege that he had in his possession game shot, &c., in this State during the close season. It is well settled as a general rule that in an indictment for an offence created by statute it is sufficient to describe the offence in the words' of the statute. Parkinson v. State, 14 Md. 184; Cearfoss v. State, 42 Md. 403; Mincher v. State, 66 Md. 227. The pleader has followed this rule in this case, and hence the objections is not a valid one. There was also a motion to quash the indictment upon the same ground, and this was also properly overruled. But, as has been seen, from what we have already said we are not able to agree with the learned Judge below in the construction of the provision of the Code under which the defendant was indicted. As we construe it, possession in this State during the close season of game killed in another State is not an offence. And this being so it follows that whenever any person is charged with a'violation of the law by having in his possession game during the prohibited time, simple justice demands that when the State has offered proof of the charge, he must have the right and the opportunity to show that the game found in his possession is — 465 — not such game as is contemplated by the statute. As was said in State v. McGuire, supra, only the plainest and most mandatory language of the lawmakers would justify any Court in holding that the mere possession of game lawfully killed would constitute an offence. (Decided April 1st, 1897). It follows from what we have said that the facts proved by the defendant, if believed by the Court sitting as a jury, constituted a good defence, and the defendant should have been acquitted. fodgment reversed and a new trial awarded.