State v. Rathbone

• Decision Date: 05 March 1940
• Docket Number: 8011.
• Parties: STATE v. RATHBONE.
• Court: Montana Supreme Court

100 P.2d 86

110 Mont. 225

STATE v. RATHBONE.

No. 8011.

Supreme Court of Montana

March 5, 1940

Appeal from First District Court, Lewis and Clark County; G. W Padbury, Jr., Judge.

C. R Rathbone was convicted of killing an elk out of season, and he appeals.

Reversed and remanded.

Toomey McFarland & Chapman and Wilbur H. Wood, all of Helena, for appellant.

H. J. Freebourn, Atty. Gen., Mark Derr, Asst. Atty. Gen., and H. Anderson and F. O. Small, both of Helena, for respondent.

W. D. Rankin and A. Acher, both of Helena, W. B. Leavitt, of Miles City, C. E. Wohl, E. Genzberger, and J. C. Giacoma, all of Butte, and John G. Brown, of Helena, amici curiae.

RUDOLPH NELSTEAD, District Judge.

On March 3, 1939, a day during the closed season for killing elk, defendant C. R. Rathbone killed a wild elk on the ranch of which he was the owner and operator known as the Circle H near Augusta in Lewis and Clark county. Immediately after the killing, defendant sent a telegram to the state game warden at the office of the Fish and Game Commission at Helena which read: "We are killing elk on our ranch stop advise quickly disposition of carcasses." The following day a deputy game warden went out to investigate. Defendant informed him that he had killed an elk the preceding afternoon and where he might find the carcass. Following defendant's directions, the deputy game warden found the elk approximately where defendant stated it would be. Arrested for the crime of killing an elk out of season defendant was tried and convicted in Justice's court of Helena township. Thereupon he appealed to the district court and was convicted by a jury in a trial de novo. In his appeal to this court defendant in his brief enumerates fifty-nine specifications of error, all of which relate to the one vital point in the case, id est, defendant's right to justify his action by proof that the killing of the elk was necessary in defense of his property. The state in the trial in the district court having proved that the defendant shot the elk in question out of season, rested its case. Thereupon defendant took the witness stand and, after identifying maps showing the location of his ranch in Lewis and Clark county, was asked the following question by his counsel: "At the time you shot the elk in question, what was the elk doing?" The county attorney objected to this question as incompetent, irrelevant and immaterial, and stated to the trial court that "it is our contention that justification is not or has no basis in a case of this sort. We make the further objection that the defendant has a remedy under section 3729.1, which provides that the Fish and Game Commission may destroy and kill elk which are damaging property. He has not availed himself of this remedy and therefore justification is not a proper defense to the killing of elk." Upon inquiry by the trial court as to whether or not the question was designed to elicit justification and an answer in the affirmative by defendant's counsel, the objection was sustained. The trial court excused the jury, whereupon counsel for defendant made oral and written offers of proof in support of his defense of justification.

The offered evidence may be summarized as follows: For many years there has been a large and increasing herd of wild elk, having its summer and fall range within the Lewis and Clark National Forest to the southwest, west, and northwest of the defendant's ranch. During the summer and fall months these animals range and forage within the forest regions, staying well back in the hills and away from the private lands of the defendant and his neighbors. As winter weather sets in annual migrations of the elk begin, leading them to follow various natural courses through the forest reserve, down creek bottoms, and along ridges, many of which natural trails converge and enter upon the Circle H ranch. This annual migration of the elk has been observed yearly, commencing with 1925, and is induced by the severe weather and scarcity of natural feed for the animals at that period of the year. Because of certain precipitous ridges in the mountain wall along the eastern boundary of the National Forest, and because of the fact that several streams flow out of the forest onto the lands of the defendant, it is inevitable that the migrating elk follow these water courses and consequently gather upon the ranch lands of the defendant where they remain to graze until molested, and, when driven away, very often return to these grazing lands, making them their feeding grounds as long as they are able to do so.

The evidence offered also tended to prove that for many years past, going back as far as 1931 in the case of the defendant, these migrating elk have each year done serious and substantial damage to the defendant's ranch, amounting to at least $2,250 per year. The principal items of damage are consumption of pasture and other forage reserved for livestock, injury to the turf curtailing the productiveness of hay and other natural grasses growing on the ranch lands, serious and costly destruction of fences caused by the attempts of the elk to jump over the fences and either becoming entangled in the wires or breaking through them. Also, serious damage has resulted annually in that the presence of the elk interferes materially with normal ranching operations since they constantly threaten to destroy necessary reserves of winter and spring feed for domestic animals, their presence makes it necessary to interfere with the normal work of the ranch in order to drive them away, damage to the fences requires interruption of ranching operations and, finally, the disturbance caused by the elk themselves and driving them off the ranch excites domestic livestock which are injuriously affected thereby.

From the offered evidence it appears that elk cannot be kept off the defendant's ranch by fencing it for the reason that elk can jump any legal fence, although they often become entangled and tear such fences down in attempting to do so. An elk-proof fence could be built by defendant only at a prohibitive expense. Any effort to keep elk off the property by driving them away is as a rule ineffective because they naturally feed at night at a time when no patrol can successfully operate, because the ranch area is so large, consisting of 4,000 acres, that it would require a large number of men working steadily to adequately protect the property and keep the elk away, and because the size of the herd, which is estimated upon the basis of reliable counts to consist of 2,200 to 3,000 animals, contributes to the impossibility of keeping them off by using patrols at defendant's expense. The cost of such patrolling in so far as defendant is concerned would be prohibitive. The patrol maintained by the Fish and Game Commission did not exceed two men at any one time excepting the winters of 1933-1934 and 1938-1939, preceding each of which winters defendant declared he would be forced to kill elk to protect his property from material damage. It further appears from the offers of proof that the invasion of elk on defendant's ranch has been continuous since he acquired the property in 1931, and that he had counted as many as 350 elk at one time feeding and grazing on his ranch; that elk continued to graze and feed in many instances for periods of not less than eight or more hours, sometimes in bands from the herd, although there were always stragglers. Also, defendant offered to testify that in his normal work from day to day he actually saw and counted elk on the Circle H ranch immediately preceding the killing of the elk in question, as follows: February 7, 1939, twenty elk in the spring pasture and twelve elk in a pasture north of Willow Creek; on February 8, fifteen elk in the spring pasture and another band about an hour later coming from the forest on to his ranch; on February 9, ten bull elk and in addition about ten deer in the spring pasture near the horse pasture division fence; on February 10, seven bull elk and a few deer in the spring pasture, and on the same day twenty-five elk in the spring pasture near the front gate and cattle shed, and still later on the same day five elk in one of his meadows. In the spring pasture on February 11, he saw ten elk; on February 13, five or six elk; on February 16, twenty elk, and on February 17, ten elk. On February 20 there were five elk in one of his meadows, and on February 27 eight elk in the spring pasture. On February 28, while working in the course of his ranch operations he saw fifteen elk in another field on the ranch which became frightened, jumped over the fence breaking it down and escaping into the forest. On March 1 seven or eight elk were again seen by him in the spring pasture, and on March 3, 1939, he saw two bull elk in the home meadow, one of which he shot and killed. All of the elk, including the one killed by defendant, were a part of the herd which had continuously during the time defendant owned the Circle H ranch had their feeding grounds in the Lewis and Clark National Forest adjoining defendant's lands, or on the ranch itself.

With respect to the elk killed by defendant as charged in the complaint, evidence was offered to prove that at the time of the killing the elk was destroying the turf in one of the home pastures of the defendant's ranch, that it was actually consuming feed which was needed for the domestic animals owned by the Circle H ranch, and that it was headed toward a particular pasture in which the feed had been reserved for spring feeding of defendant's cows at the time when they would be having their calves and would require intensive feeding under close observation, which pasture was situated adjacent to the home buildings of the ranch and was...