State v. Harvey

88 Vt. 358 | Vt. | 1914

Haselton, J.

This is a grand juror’s complaint, brought before the city court of Montpelier, charging that the respondent, on a day named, without authority, had in his possession fish protected by law, that is, five brook trout, each less than six inches in length. The ease came into county court on appeal, and there the respondent demurred on the ground that the complaint did not allege that the respondent was “knowingly” in possession of five brook trout less than six inches in length. The demurrer was overruled, the respondent excepted, and the case was passed to this Court before trial.

The fish and game law was codified by No. 201 of the Acts of 1912, and sections 2, 27, and 40 of that act, read together, protect at all times brook trout under six inches in length, and forbid, under penalty, any person except as authorized by the act to take or “have in his possession” at any time, brook trout less that six inches in length.

Section 2 provides that a person doing anything prohibited by the act, with reference to fish, quadrupeds or birds shall be deemed to have violated the provisions of the section. So far, knowledge is not made an element of the offence.

The section closes with a provision that a person who counsels, aids, or assists in a violation of any provision of the act or “knowingly” shares in any of the proceeds of such violation, by receiving or possessing fish, quadrupeds, or birds, shall be deemed guilty of a misdemeanor and punished as a principal. But this provision so. far as it relates to possession finds its application in connection with numerous provisions of the statute which relate only to the manner of “taking” game and fish and matters of that sort. For example, game, that is, certain birds and quadrupeds, may, in general, be taken only with a gun fired at arm’s length. The same person may take but one wild deer in a season, and not more than four quail nor more than twenty wild ducks in a day. Ducks and geese cannot be taken from a boat propelled otherwise than by hand. There is a limit on the number of trout that a person may take in one day. No person may fish for’ trout for a certain distance below a dam during the spawning season. Fish are, in -general, to be taken by ‘ ‘ angling, ’ ’ which is defined in the act to mean taking fish with hook and line in hand, or rod in hand, though, as applied to fishing from a boat, the use of two lines with or without a rod is ‘ ‘ angling. ’ ’ There are numerous provisions of this character, and a person who comes into possession of fish and game taken in violation of such provisions is guilty of nothing unless he “knows” of the violation of the provisions.

But the statute makes it an offence for a person “to have in his possession” trout under six inches in length; and he is charged with knowledge of the trout in his possession and of their length, and his knowledge thereof does not have to be proved, and therefore need not be alleged, and the word “knowingly” need not be inserted in the complaint. State v. Tomasi, 67 Vt. 312, 31 Atl. 780; State v. Ward, 75 Vt. 438, 56 Atl. 85; State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, 13 Ann. Cas. 321.

If the respondent is not guilty because of any exception in the statute either expressed or implied, the exception does not constitute a material part of the definition of the offence, and so need not be negatived in the complaint. State v. Smith, 61 Vt. 346, 17 Atl. 492; State v. Paige, 78 Vt. 286, 62 Atl. 1017, 6 Ann. Cas. 725; State v. Carruth, 85 Vt. 271, 81 Atl. 922.

We are construing a criminal statute, of a sort, but there is no difficulty with the matter if, in accordance with a suggestion in United States v. Union Supply Company, 215 U. S. 50, 55, 54 L. ed. 87, 30 Sup. Ct. 15, we “free our minds from tbe notion that criminal statutes must be construed by some artificial and conventional rule.”

Judgment affirmed and cause remanded for trial upon its merits.