98 P. 713 | Or. | 1908
Opinion by
“It shall be unlawful at any time between the first day of November of each year and the fifteenth day of July of the following year, to hunt, pursue, take, kill, injure, destroy, or have in possession any buck deer. It shall be unlawful at any time between the first day of November of each year and the first day of September of the following year to hunt, pursue, take, kill, injure, destroy, or have in possession, any female deer. * * It shall be unlawful within the State of Oregon, at any timé, to sell, or offer for sale, barter or exchange, any deer whatever. Any person * * having in possession any deer.or carcass, or part of a deer during the season when it- is unlawful .to take or kill such deer shall be-guilty of a misdemeanor.”
It is contended by the State that the latter part of this amendatory enactment is intended to prohibit any person from having possession of a carcass or part of a deer at any time during the season when it is unlawful to kill or take deer in this State regardless of the time when such deer was killed, and that proof of such possession is conclusive of the guilt of defendant. The argument is that the language of the statute is clear, unambiguous,, and certain, and that there is no room for construction. The lower court must have taken this view and so construed the act. On the part of. the defendant the contention is made that the words “carcass, or part of a deer,” used in the act, were intended, and
“Any person * * having in possession any deer, or carcass, or part of a deer, during the season when it is unlawful to take or kill such deer, shall be guilty of a misdemeanor.”
These words, “having in possession any deer or carcass or part of a deer,” when taken in their literal and ordinary meaning, neither expressly include the possession of a part of a deer taken in the open season, nor are any words used importing an intent to exclude from the prohibition the possession of a deer so taken or killed, unless by the use of the word “such,” in the latter part of the sentence quoted, a limitation was intended. In the case of State v. McGuire, 24 Or. 366, 377 (33 Pac. 666, 670: 21 L. R. A. 478), Mr. Chief Justice Lord says that “it ought to require plain, unambiguous, and mandatory language to justify any court in declaring fish or game lawfully caught or taken to be the subject of an offense by the simple possession of it. A construction leading to such injustice ought to be avoided, if it can be reasonably done.” The rule that, where the language of the legislature is fairly susceptible of two different meanings, that one should be preferred which excludes and prevents consequences that are mischievous and unjust, was there approved, and it has been applied in similar cases by other courts. Commomvealth v. Wilkinson, 139 Pa. 298, 305 (21 Atl. 14); Allen v. Young, 76
The words of the statute are sufficiently comprehensive to make it an offense to have during the close season possession of the. “carcass or part of a deer” though lawfully obtained, and, in that event, proof of the fact of possession would raise a conclusive presumption of guilt. But the language is susceptible of a different construction for the word “such,” as used in the phrase, “when it is unlawful to take or kill such deer,” may fairly be held to refer to “a deer,” the possession of the carcass, or part of which, is prohibited. The rule to be applied in such cases is that, “where the language of the legislature is fairly susceptible of two different meanings, that should be preferred which excludes and prevents consequences that are mischievous and unjust.” State v. McGuire, 24 Or. 366 (33 Pac. 666: 21 L. R. A. 478). To adopt the former conclusion, as was said by Mr. Chief Justice Gray, in Commonwealth v. Hall, 128 Mass. 410 (35 Am. Rep. 387), “when not imperatively required by the language of the act, would be inconsistent with the ordinary rules of construction of penal statutes.” But we are not left to the mere unaided force of such rule to derive from this language its true intendment. On an examination of the entire original act, of which this amendment has become a part, we are of the opinion that - it was never intended to declare that the mere possession during the close season of game, though lawfully obtained, should raise a conclusive presumption of guilt, but that proof of such possession should make a prima facie case.
“Proof of the possession of any of the aforesaid wild animals, wild fowl, or game birds, at any time when it is unlawful to take or kill the same, unless they be kept as in this section provided, shall be prima facie evidence in any prosecution for a violation of the provisions of this act, that the person or persons, firm, company, or corporation in whose possession the same is found, took, killed, destroyed or had in possession the same in the county wherein the same is found, during a period when it was unlawful to take, kill, destroy, or have the same in possession.”
The situation here is identical with that in Commonwealth v. Hall, 128 Mass. 410 (35 Am. Rep. 381), where in considering the construction of a similar statute, Mr. Chief Justice GRAY remarks that “saying that possession shall be prima facie evidence necessarily implied that it.shall not be conclusive; if the mere possession of birds, during the time within which the taking or killing is prohibited, of itself constituted an offense under the previous sections of the statute, to say that such possession should be prima facie evidence would be superfluous, if not absurd.” To the same effect is Commonwealth v. Wilkinson, 139 Pa. 298, 305 (21 Atl. 14). Prior, then, to the amendment of 1907, which added to the statute the words upon which this charge is based, proof of the possession of any of the wild
The defendant, therefore, had a right to show, in explanation of his admitted possession of eight deer hams during the close season, that the deer of which they were a part were killed by him, at a time when it was lawful to kill them, and thereby exonerate himself. And if the evidence offered was sufficient in the minds of the jury to overcome the prima facie presumption raised by the statute, he would be entitled to a verdict of acquittal. Hence the ruling of the court upon the exclusion of defendant’s evidence, and the instruction given, were erroneous, and the judgment should be reversed and a new trial ordered. Reversed.