State v. Koock

POX, P. J. This cause was certified to this court by the Kansas City Court of Appeals for thei reason that it was in conflict with the decision of the St. Louis Court of Appeals in Ex parte Helton, 117 Mo. App. 609. The defendant was indicted, tried and' convicted for hunting without a license in the county of Pettis, being the county in which the defendant resided. This prosecution is predicated upon an act of the General Assembly relative to the preservation, propagation and protection of game animals, birds and fish. This cause was submitted to the court sitting as a jury upon the following agreed statement of facts: “It is hereby agreed and stipulated between the State and the defendant that the following are the facts in this case and that this cause may be submitted to the court and determined without a jury upon this ■agreed statement of facts: “1. It is agreed that the defendant did on the 31st day of October, 1905, at Pettis county, Missouri, hunt game birds, to-wit, one wild duck, on lands not then and there farm lands owned by defendant and then and there not held by him as a tenant, without him being then and there at the time of such hunting, injuring, killing and1 destroying said' game bird aforesaid in possession of a hunter’s license duly issued to him covering the period in which said hunting was done permitting him to do so and without him having any license whatever authorizing him to hunt in the State of Missouri. “2. It is further admitted that at the time of said hunting the said Arthur Koock was a resident of Pettis county, Missouri, and that he is now a resident of Pet [232] tis county, Missouri, and has been for more than one year last past and has been for more than one year previous to the time of said hunting.” Upon this statement of facts the court declared the law as follows: “The court, sitting as a jury, at the request of the prosecution, declares the law to be that if the court, sitting as a jury, shall believe from the evidence beyond a reasonable doubt that the defendant, Arthur Koock, in Pettis county, Missouri, on the 31st day of October, 1905, did hunt wild ducks or did injure, kill or destroy a game bird, to-wit, one wild duck, on lands not then and there farm lands owned by the said Arthur Koock or then and there held by the said Arthur Koock as a tenant, and if the court, sitting as a jury, further finds and believes from the evidence that at the time of such hunting, killing, injuring and destroying of the game bird aforesaid the said Arthur Koock was not then and there in possession of a hunter’s license then and there duly issued to him, the said Arthur Koock, covering the period in which he, the said Arthur Koock, was so hunting, killing, injuring and destroying the game birds aforesaid, then you will find the defendant guilty and assess his punishment at a fine of not less than twenty-five dollars nor more than one hundred dollars, and the fact that the defendant was hunting in the county of which he was a resident, if the court believe he was so hunting in his own county, constitutes no defense to this prosecution.” To which action of the court in giving said instruction the defendant objected and excepted at the time. Whereupon, the defendant requested the court to give the following instruction: “The defendant asks the court to declare the law to be that he had a right under the law to hunt in the county in which he resided without taking out a hunt [233] er’s license and that for that reason he is not guilty.” Which request was refused, and to the action of the court in refusing to give said instruction the defendant objected and excepted at the time. The cause being submitted to the court upon the agreed statement- of facts and the instruction given as requested by the State, the court found the issues for the State and found the defendant guilty and assessed bis punishment at a fine of $25. A timely motion for new trial was filed and by the court overruled. Judgment was rendered in conformity to the verdict and from this judgment the defendant prosecuted his appeal to the Kansas City Court of Appeals, and that court, as heretofore indicated, certified the cause to this court, and the record is now before us for consideration. OPINION. The instruction given for the State and the one requested by the defendant, which was refused by the court, plainly indicate the only proposition presented to this court for its solution, that is, whether or not the defendant had a right under the provisions of the act, as heretofore indicated, to hunt in the county in which he resided, without taking out a hunter’s license as required by the provisions of the act. The legal proposition involved in this controversy has received by the Courts of Appeals in St. Louis and Kansas City very careful consideration. When the question was first presented to the St. Louis Court of Appeals it was held that it was essential for any person desiring'to hunt, either in the county in which he resided or in any other county in the State, to procure a license authorizing him to do so. Upon a reconsideration of the question by that court it was expressly ruled that it was not essential for a person who desired to hunt in the county in which he resided to obtain any [234] license authorizing him to do so. [Ex parte Helton, 117 Mo. App. 609.] In the case at bar the Kansas City Court 'of Appeals, by a majority opinion, ruled that the defendant was guilty of a violation of the provisions of the act by hunting in the county in which he resided without taking- out a hunter’s license authorizing him to do so, Ellison, J., dissenting from the views expressed by a majority of that court. The leading and crucial question presented to the St. Louis and Kansas City Courts of Appeals involved the proper construction of section 54 of the game law (Laws 1905, p. 158), as herein indicated. Section 54 provides that, “It shall he unlawful for any person, after the passage of this act, to hunt in this State outside of the county in which he lives without first obtaining a license permitting him or her to. do so. Such license shall be dated when issued and shall authorize the person named therein to hunt during that year, and then only subject to the regulations and restrictions provided by law.” The proposition as to the proper construction of the provisions of section 54, in view of other numerous provisions in certain sections of the act, have been ably discussed and exhaustively treated by the St. Louis and Kansas City Courts of Appeals, as well as by Ellison, J., in his dissenting opinion to the views expressed by a majority of the court of the Kansas City Court of Appeals. We have read with a high degree of interest the discussion of this proposition by the Courts of Appeals and have carefully considered the views expressed, as well as the conclusions reached, and it can serve no good purpose either to the Bench or Bar to review in detail the views as expressed by those courts. We shall be contented with announcing our conclusions upon the proposition as disclosed by the record. One of the leading and cardinal principles in the rules of construction of statutes is to arrive at the in [235] tent of the lawmaking power. In onr opinion, after a most careful consideration of all the provisions of the act now under discussion, the Legislature never intended that a hunter’s license should first be obtained in order to authorize a person to hunt in the county in which he resided. No guess work or inferences should be indulged in the interpretation of a penal statute. The uniform rule is that such statutes should be strictly construed and not extended or enlarged by judicial construction so as to embrace offenses and persons not plainly within their terms. [State v. Reid, 125 Mo. 43; State v. Bryant, 90 Mo. 534; Sedgwick on Construction of Statutory Law, 280; Fusz v. Spaunhorst, 67 Mo. 256; Kritzer v. Woodson, 19 Mo. 327; Howell v. Stewart, 54 Mo. 400; United States v. Morris, 14 Peters 464; Bishop on Statutory Crimes (2 Ed.), secs. 196, 227.] We concur in the result of the conclusions reached by the St. Louis Court of Appeals in Ex parte Helton, supra, in which the same proposition was involved as in the case at bar. We have thus indicated our views upon the legal propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be reversed and the defendant discharged, and it -is so ordered. All concur.