26 N.Y.S. 221 | N.Y. Sup. Ct. | 1893
Lead Opinion
This is an appeal from a judgment entered upon the verdict of the jury in favor of the defendant and against the plaintiff, and from an order denying the motion to set aside such verdict. The action is to recover a penalty for violation of the game laws of the state, and for the purpose of this appeal it is sufficient to take the defendant’s version of the transaction. His statement is that he was trolling for fish, and while so trolling his line got hitched or caught to something, and then, when pulled in, he found that it was a net. That he pulled the net, and the fish contained in it, into his boat, and started for shore. That when he reached the shore he saw a game constable, who asked him what he was going lo do with the net, to which the defendant replied that he was going to destroy it. Then the game constable said he was going to destroy it, for he got paid for that. The constable then took the net, and cut it up, and threw the fish back into the water. That the defendant asked him to give him a few, saying:
MAYHAM, P. J., concurs.
Dissenting Opinion
(dissenting.) Defendant did not catch the fish in question. He found them in a net placed by another party. He proceeded to take the net, with the fish in it, to the shore. While they were being so conveyed I think the fish were not in possession of defendant within the meaning of the statute, unless he intended to keep them. It is not clear that he so intended. The presumption is against such an intent. • I think the question of his intent, under the circumstances of the case, was one of fact for the jury, and hence that the trial judge properly disposed of the case.