State v. MorrisonState v. Morrison
- Reporters:
- ,
- Before:
- Henderson
PROCEDURAL HISTORY
On November 20, 1982, appellees Morrison, Fiedler, and Kerns were charged with violating
FACTS
Conservation Officer Muck was on routine patrol near the divide of the Cheyenne and Bad Rivers in Haakon County, South Dakota, on November 20, 1982. This is broad, expansive country. He observed a spotlight flashing in the air from some distance away and proceeded to investigate. Ultimately, he parked his vehicle to gain a vantage point. A vehicle, with a spotlight being used, traveled approximately an 8-mile circle around his position. Eventually, Officer Muck came upon a pickup truck occupied by appellees. A spotlight beam emanated from the pickup truck illuminating some farm buildings and the surrounding area. Officer Muck stopped the pickup truck observing therein a loaded Remington 700 centerfire rifle, a loaded twelve-gauge shotgun, a loaded .22 caliber rifle, and a Q-beam spotlight which was warm to the touch. Officer Muck confiscated the spotlight and arrested ap-pellees. Wild game was not found in ap-pellees’ possession.
ISSUE
IS
DECISION
It is unlawful for any person, or one or more of a group of persons, together, to throw or cast the-rays of a spotlight, headlight or other artificial light on any highway, or in any field, pasture, woodland, forest or prairie, for the purpose of spotting, locating or taking or attempting to take or hunt any animal while having in possession or control any firearm, bow or other implement whereby *637 any game could be killed. However, outside of the Black Hills fire protection district:
(1) A person may use a hand held light while on foot, to take raccoons after they have been treed by dogs; and
(2) A landowner or occupant may use an artificial light on his or her land, with a shotgun using shot shells only or a firearm using a .22 caliber rimfire cartridge, in the taking of rabbits, hares, coyotes, foxes, raccoons, opossums, badgers, skunks or rodents.
A violation of this section is a Class 1 misdemeanor. The provisions of this section do not apply to a law enforcement officer in the performance of his duty.
Appellees assert the “any animal” and the “possession or control” language of
As we have recently held: “We start from the premise that enactments of the legislature will be upheld unless they are clearly and unmistakenly unconstitutional.” In re T.F., 339 N.W.2d 124, 125 (S.D.1983). See also, State v. Crelly, 313 N.W.2d 455 (S.D.1981). From this basis, we look to a contemporaneous holding of the United States Supreme Court on vagueness: “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, — U.S. —, —, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). A related, but conceptually distinct, doctrine is overbreadth. “When a statute not only forbids conduct constitutionally subject to proscription, but also sweeps within its ambit those actions ordinarily deemed to be constitutionally protected, it is considered overbroad.” State v. Vogel, 315 N.W.2d 324, 327 (S.D.1982).
Protection of game animals is clearly within a state’s police power.
Baldwin v. Fish & Game Comm’n of Montana,
436 U.S. 371, 391, 98 S.Ct. 1852, 1864, 56 L.Ed.2d 354, 370 (1978). Appellees have failed to assert
Convictions for spotlighting or using artificial hunting lights have been upheld under statutes employing varying language to describe the protected species. See State v. Hocker, 201 N.W.2d 74 (Iowa 1972) (“any animal”); People v. Kreienheder, 21 Ill.Dec. 425, 64 Ill.App.3d 598, 381 N.E.2d 752 (1978) (“any wild birds or mammals”); State v. Fonseca, 378 So.2d 389 (La.1979) (“Hunt with firearms of any type ... after one-half hour after official sunset and before one-half hour before official sunrise”); State v. Hillock, 384 A.2d 437 (Me.1978) (“wild animals”); State v. Suess, 236 Minn. 174, 52 N.W.2d 409 (1952) (“any wild animal”); State v. One Oldsmobile Two-Door Sedan, 227 Minn. 280, 35 N.W.2d 525 (1948) (“any wild animal”); State v. Barber, 91 N.M. 764, 581 P.2d 27 (1978) (“big game or domestic livestock”); Saurman, 413 N.E.2d at 1199 (shall not cast rays of spotlight while having in pos *638 session a hunting device or cast rays of spotlight to locate a wild animal); State v. Ledford, 47 Or.App. 1109, 615 P.2d 1161 (1980) (“wildlife”); and State v. Erickson, 55 Wis.2d 150, 197 N.W.2d 729 (1972) (“shining deer”). See also, Chastang v. State, 366 So.2d 367 (Ala.Cr.App.1979); State v. Souder, Ind.Ct.App., 444 N.E.2d 891 (1983); and State v. Bragg, 334 A.2d 507 (Me.1975).
In
State v. Halverson,
261 Iowa 530, 155 N.W.2d 177 (1967), the Iowa Supreme Court upheld the constitutionality of Iowa’s spotlighting statute which, like South Dakota’s, reads “any animal.” This is entirely logical since spotlighting has a devastating effect on a broader class of game animals than “big game.” Appellees would have us illuminate the “any animal” language of
Ordinary people can understand that
Finally, we have reviewed appellees’ argument that they failed to have possession or control of the three loaded firearms removed from the pickup truck, and we find it without merit.
Reversed.
All the Justices concur.
Notes
Prior to 1982,