107 N.Y.S. 1076 | N.Y. App. Div. | 1908
This is an action for penalties for violation of section 28 of the Forest, Fish and Game Law of the State (Laws of 1900, chap. 20, as amd. by Laws of 1902, chap. 317) and section 30 of said law (as amd. by Laws of 1904, chap: 588), in unlawfully possessing certain quail, grouse and plover in the period when such possession is prohibited. At about two-fifty p. m. on January 1, 1907, two game protectors found in the possession of the defendant John B. Martin, at the Café Martin in the city of Mew York, forty-five grouse, eight plover, one hundred and two quail and fourteen partridges. All of the. birds were picked. Some of them were in the preparing room near the kitchen fire where the cooking was done, and the rest were in the ice box. There is nó controversy about the possession or the number of birds, or the amount of the judgment, provided that the direction of tlie verdict was proper.
Section 22 of the Forest, Fish and Game Law, as amended by chapter 578 of the Laws of 1904, provides that the close season for quail shall be from December first to October thirty-first, both inclusive. The close season for plover is from January'first to August fifteenth, both inclusive (id. § 30, as amd. by Laws of 1904, chap. 588). The 'close season for grouse is from December first to September fifteenth, both inclusive (id. § 25, as amd. by Laws of 1902, chap. 317).
Section 28 (supra) provides as follows: “Woodcock, grouse, and quail, not to be possessed.— Woodcock, grouse and quail shall not be sold or possessed .during the close season, except in the month of,December, and possession or sale thereof during December shall be presuinptive evidence that they were unlawfully taken by the possessor.” Section 30 (supra) provides: “ * * * Blover shall not be taken or possessed from January first to August fifteénth, both inclusive.” Section 39 of the Forest, Fish and Game Law (as amd. by Laws of 1905, chap. 318), in article 2, entitled “ Birds,” provides that “ A person who violates any provision of this article is guilty of a misdemeanor and is liable to a penalty of sixty dollars and to an additional penalty of twenty-five dollars for each bird * * * taken [or] possessed * * * • in violation thereof.”
It will thus be seen that the close season for quail and grouse began on the first day of December, after' which it was unlawful to take such game birds. The Legislature, however, allowed one
In Geer v. Connecticut (161 U. S. 519) it was held that there is no property in game other than that which the State permits. The taking of it may be absolutely prohibited or traffic and commerce in it may be absolutely prohibited. It is proper exercise of the police power and within the discretion of the Legislature.
The forty-five birds designated as black grouse were imported. In People v. Bootman (180 N. Y. 1) it was held that the Legislature, in the exercise of the police power, has power to make the possession of imported game unlawful, and that the method of affording protection to game is necessarily within the discretion of the Legislature; that laws passed for this purpose do not interfere with private property, for there is no property in ■ living wild animals and only as the laws permit their capture is there property in wild animals after they are caught or killed; that the Legislature may provide a close season for the taking of game, and may prohibit the possession or sale of game during that season.
In People ex rel. Hill v. Hesterberg (184 N. Y. 126) it was held that by virtue of the act of Congress, passed May 25, 1900,
The appellants seek to extend the period of one month allowed for the possession and sale of these game birds after the expiration of the close season under section. 141 of the Forest, Fish and
The defendant testified that on the afternoon when the birds were seized he said to the wardens : “All right, those, game go back to-morrow to Mr. Silz, * * * where I bought the game.” The argument of the appellant is in brief that because after the discovery of the game the defendant said-that it was his intention ón the next day to send them back to the wholesale dealer from whom he had bought them, in order that that wholesale dealer, upon giving the bond required by law, might put them in cold storage for preservation until the next season should opón and lie Could lawfully sell them,) therefore, defendant’s mental intention to. send the.game to another man in order that that man might comply with the bonding provision of the law, made defendant’s possession lawful and the judgment error. But the section relied upon, expressly provides that “No presumption that the possession of * * * game * * * is lawfully possessed tinder the provisions of this section .shall arise until it affirmatively appears that the provisions thereof have been complied with.”
Not an intention that somebody else may hereafter, comply with said provisions, but that it- affirmatively appears that the provisions" have been complied with. When a person claims the benefit of an exception the burden is put upon him to show that he comes within its provisions.
In the face of the positive provisions of the various.sections of the Forest, Fish and Game Law, the contention of the appellants cannot be sustained. If an intention to do an act is equivalent to the doing, of it, and sufficient to nullify the express provisions that no presumption shall arise until it affirmatively appears that the. provisions of the act have been complied with, no penalties can ever be inflicted. Intent is not made a part of the statute. Mere possession is enough.
It, therefore, follows that the judgment and order appealed from should be affirmed, with costs to the respondent.
Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.
Judgment and order affirmed, with costs.
See 31 U. S. Stat. at Large, 187, chap. 553.—[Rep.