85 Md. 451 | Md. | 1897
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
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.
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
“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
There is much conflict of opinion upon this question and we shall not undertake to review or harmonize the numer
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
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.