89 Me. 81 | Me. | 1896
The respondent was complained of for killing a deer in close time, and the question of his liability to be prosecuted therefor is presented to this court upon the following statement of facts agreed to by the parties:
“The respondent had in his possession at Steuben, in Washington County, on June 19th, 1894, parts of a deer, which said respondent killed on June 15th, 1894, being in close season, to wit: between the first day of January and the first day of October, in the enclosed deer-park on Petit Menan Point, in said Steuben; said park being the property of the Petit Menan Company, so-called, and said respondent being the owner of one-fifth of the deer in said park, in common with said company; said deer was caught alive, when a fawn, on Township No. 29, M. D., by Charles Haycock, in the month of June, 1888, being the close season, as aforesaid. That said Haycock sold said deer the following year after his capture to Horace F. Willey of Cherryfield, by whom it was kept until the month of November, 1890, when he, said Willey, sold it to said respondent, who then put it into the park aforesaid in company with other deer therein confined, and was in his possession continually until killed by the respondent as aforesaid.*85 The respondent was arrested by Game Warden Charles I. Corliss, and, on the filth day of July, 1894, was arraigned before Jacob T. Campbell, Esq., a Trial Justice in and for said Washington County, at said Cherryfield, on complaint of said Corliss, charging said respondent with having in his possession at Steuben, June 19th, 1894, one deer and parts of a deer killed in close time, as aforesaid, whereupon said respondent waived examination, was found guilty by the magistrate, and sentenced to pay a fine of forty dollars and costs, from which sentence respondent appealed. The Law Court to affirm or disaffirm the decision of said magistrate, as the law and facts in the case warrant.”
The respondent contends, upon the strength of the cases of Allen v. Young, 76 Maine, 80, James v. Wood, 82 Maine, 173, and State v. Beal, 75 Maine, 289, that the deer was so far within his dominion and control in open time as to have become his absolute property, with which he could at any time do as he pleased. The doctrine of the above cases has been lately emphasized somewhat by the decision of the court in State v. Bucknam, 88 Maine, 385, in which it has been distinctly held that, under our statutes, one who lawfully obtains the ownership of game in open time, in that case carcasses of deer, is not criminally liable for having the same in his possession in close time afterwards. Some of the States have decided that laws which do make such acts criminal are not unconstitutional, but that question did not arise in the case referred to.
We think, however, that, giving the respondent the fullest scope of protection which the doctrine of those cases can afford him, he fails to find in them any sufficient justification for his act. We refer to the act of killing the deer within close season, waiving now all question of illegality in capturing the animal alive originally.
Probably it would not be questioned that in particular instances animals ferae naturae may be so far reclaimed and domesticated, or, if not reclaimed may be so closely subjected to confinement by a person, as to be regarded as under his dominion and control and to become his property. And, if captured or obtained at a proper
But we think that a proper construction of the statute applicable to the facts in the case at bar does not admit of a conclusion that the deer in question was under such dominion and control of the respondent and his associates as to allow them to kill or hunt such animal in close time. Their so-called possession was not .actual and complete enough; was more ficticious than real. The deer was roaming wildly over a park covered mostly by woods, as was stated when the case was reported, containing between seven and eight hundred acres of territory and surrounded on all sides by the sea, excepting at a narrow strip or neck connecting this, an almost natural park, with the main land, and artificial structures were placed across this neck to prevent the escape of animals therefrom. Animals kept within these wide boundaries .cannot be said to be thereby either reclaimed or held in close confinement. Should they escape from the park either by sea or land into other woods, it would be preposterous for the proprietors of the park to set up an ownership in such animals against other persons who might kill or capture them off of their premises. The most that the proprietors can reasonably claim is that they possess by artificial means some facilities for capturing or recapturing deer within their woods, and perhaps for obtaining actual possession of the same either dead or alive; and, while that may be denominated an approach towards possession, a step in the direction of possession, to style such a condition of things as an absolutely actual possession, thereby giving the respondent complete property in the animals, would be farfetched and visionary.
The ideas which we entertain on this subject are aptly illustrated by the remarks of the court in Commonwealth v. Chace, 9 Pick. 15, a case involving the .question as to how far and under what conditions doves might be the subject of larceny, and we quote largely therefrom:
“It is held in all the authorities that doves axe ferse natuxee*87 and as sucb are not subjects of larceny, except wben in tbe care and custody of tbe owner; as wben in a dovecote or pigeon-bouse, or wben in tbe nest before tbey are able to fly. If, wben thus under tbe care of tbe owner, tbey are taken furtively, it is larceny.
“Tbe reason of this principle is that it is difficult to distinguish them from other fowl of tbe same species. Tbey often take a flight and mix in large flocks with tbe doves of other persons, and are free tenants of tbe air, except when impelled by hunger or habit, or tbe production or preservation of their young, tbey seek tbe shelter prepared for them by tbe owner. Perhaps wben feeding on tbe grounds of the proprietor, or resting on bis barn or .other buildings, if killed by a stranger, tbe owner may have trespass, and if tbe purpose be to consume them as food, and tbey are killed or caught or carried away from tbe enclosure of tbe owner, tbe act would be larceny. But in this case there is no evidence of the situation tbey were in wben killed, whether on tbe flight, a mile from tbe grounds of tbe owner, or mingled with tbe doves of other persons, enjoying their natural liberty. Without sucb evidence tbe act of killing them, though for the purpose of using them as food, is not felonious.”
Judgment below affirmed.