State v. Weber

CourtUnited States State Supreme Court of Missouri
Citation102 S.W. 955,205 Mo. 36
PartiesSTATE v. WEBER.
Decision Date14 May 1907

Const. art. 4, § 28, provides that "no bill * * * shall contain more than one subject, which shall be clearly expressed in its title." Laws 1905, p. 161, § 13 [Ann. St. 1906, p. 3608], has the following title: "An act relating to the preservation, propagation and protection of game animals," etc. Held, that the title of the act was broad enough to embrace within its meaning all kinds of deer, whether tame or wild.

2. GAME — STATUTORY REGULATION — SCOPE OF ACT.

Laws 1905, p. 161, § 13 [Ann. St. 1906, p. 3608], declares it unlawful to have in possession the carcass of any deer which has not thereon the natural evidence of its sex. Held, that the act applies to all deer, whether in a wild state or domesticated.

3. EMINENT DOMAIN — NATURE OF POWER.

Laws 1905, p. 161, § 13 [Ann. St. 1906, p. 3608], making it unlawful to have in possession the carcass of any deer which has not thereon the natural evidence of its sex, does not violate Const. art. 2, § 21, prohibiting the taking of private property for public use without compensation, although it applies to domesticated as well as to wild deer.

Appeal from Circuit Court, Jackson County; John W. Wofford, Judge.

Anton Weber was convicted of having in his possession the carcasses of deer which did not have thereon the natural evidence of their sex, and appeals. Affirmed.

Chas. B. Adams and Wash Adams, for appellant. Isaac B. Kimbrell, Pros. Atty., and Bruce Barnett, for the State.

BURGESS, J.

At the January term, 1906, of the Jackson county criminal court, under an information filed by the prosecuting attorney of said county, the third count of which charged the defendant with having in his possession the carcasses of three deer which did not have thereon the natural evidences of their sex, in violation of section 13 of the act known as the "Game Law" (Laws 1905, p. 161 [Ann. St. 1906, p. 3608]), approved March 10, 1905, the defendant was found guilty as charged in said third count, and his punishment assessed at a fine of $25. The cause was tried by the court, trial by jury having been waived. From the judgment of the court defendant appealed to the Kansas City Court of Appeals, by which the cause has been transferred to this court for its determination; sections 15, 20, 21, and 30 of article 2 of the Constitution being involved. The evidence on the part of the state showed that the defendant had in his possession, and was offering for sale at his meat market, in Kansas City, on December 14, 1905, the carcasses of eight deer, from which the natural evidences of their sex had been removed, which facts were not denied by the defendant. Defendant introduced evidence showing that the deer in question had been fawned and raised in captivity upon a stock farm in Henry county, Mo., owned by Mrs. George M. Casey, and were killed there and their carcasses sold and shipped to the defendant at Kansas City. The deer had belonged to a herd raised upon the Casey farm, and were descended from a pair of tame deer raised as pets some 25 years before on the lawn of the Casey home. They were kept in a pasture inclosed by a high fence, were permitted to run with the cattle, were raised under similar conditions, and were fed and cared for like cattle. The inclosure in which they were kept was never maintained as a game preserve, nor were the animals raised or used for hunting purposes. The herd at one time had increased to 150 head. A number of the deer were killed every year for food purposes, and it had for several years been the custom of defendant, during the holiday seasons, to purchase a small number of deer from Mr. or Mrs. Casey for sale at his meat market in Kansas City.

The defendant asked the court to declare the law to be as follows: "The court, sitting as a jury, declares the law to be that if it appears from the evidence that the deer described in the information against defendant were purchased by defendant from Mrs. George M. Casey for value, and were shipped to him from Clinton, Henry county, Mo., to be sold in the Kansas City market; that said deer consisted of part of a herd of tame or domesticated deer which were bred and raised on the Casey farm, near Clinton, Mo., as domestic animals; that said deer were kept constantly inclosed by fences, and were not, and had never been, permitted to run at large, or to be hunted as game; that said herd of deer was the product of a pair of deer raised as pets on the lawn of the Casey home more than 20 years ago; that a part of said herd were killed annually and sold and shipped to the Kansas City and other markets for food purposes; and that on and prior to June 16, 1905, the date on which the game law of Missouri, under which the information against defendant was brought, went into effect, the said deer were held by private ownership, legally acquired — then said deer are not within the provisions of said game law, and the defendant is not guilty of the offense or offenses charged in said information, and must be discharged." This declaration of law was refused, and defendant excepted at the time.

The sections of the act having any connection with this prosecution are as follows:

"Section 1. The ownership of and title to all birds, fish and game in the state of Missouri, not held by private ownership, legally acquired, is hereby declared to be in the state, and no fish, birds or game shall be caught, taken or killed in any manner or at any time, or had in possession except the person so catching, taking or killing or having in possession shall consent that the title to said fish, birds and game shall be and remain in the State of Missouri for the purpose of regulating and controlling the use and disposition of the same after such catching, taking or killing. The catching, taking, or killing or having in possession of birds, fish or game at any time, or in any manner, by any person, shall be deemed a consent of said person that the title of the state shall be and remain in the state for the purpose of regulating the use and disposition of the same and said possession shall be consent to such title in the state."

"Sec. 13. It is hereby declared unlawful to kill or attempt to kill any deer in the state of Missouri under one year of age. It is further declared unlawful to kill any deer of any age between the first day of January and the first day of November in each year and for the purpose of preventing the extinction of the species it is hereby declared unlawful to kill any doe. It is further declared unlawful to make use of any artificial light in hunting or killing deer; and the wearing or having such light on the head shall be prima facie evidence of the violation of this section. It is also declared unlawful for any person to wound, kill or capture any deer in the waters of the streams, ponds or lakes within the jurisdiction of this state, or to have in possession or transport at any time the carcass of any deer, or any portion of such carcass, unless the same has thereon the natural evidence of its sex. Any person violating the provisions of this section shall be punished by a fine of not less than $25.00 nor more than $100.00."

"Sec. 43. It shall be the duty of the game and fish warden to enforce all laws now enacted and which may be hereafter enacted for the protection, preservation and propagation of the game animals, birds and fish of this state, and to prosecute, or cause to be prosecuted, all persons who violate such laws. Said game and fish warden may make complaint and cause proceedings to be commenced against any person for the violation of such laws and he shall not be obliged to furnish security for costs. Said game and fish warden shall at any and all times seize any and all birds, animals or fish which have been caught, taken or killed at a time, in a manner, or for a purpose or had in possession, or which had been shipped, contrary to any of the laws of this state."

"Sec. 45. All birds, animals or fish, seized by the said game and fish warden shall be donated to some charitable institution in the county where such seizure was made. It is hereby made the duty of every warehouse, cold storage plant, merchant or common carrier, agent, servant or employé thereof, to permit the game and fish warden to examine any package in the possession of said warehouse, cold storage plant, merchant or common carrier, or agent, servant or employé thereof, which the said game or fish warden shall suspect or have reason to believe contains fish, game or birds protected by the laws of the state, and not entitled under such law to be transported or had in possession, or when the said game and fish warden shall suspect or have reason to believe that the said package is falsely labeled. Any person, firm or corporation refusing the game and fish warden or any officer charged with the enforcement of the fish and game laws, permission to examine or open any such package or impede such action by the game and fish warden shall be punished by a fine of not less than $50.00 nor more than $150.00. Said game and fish warden shall not be liable for damages on account of any search, examination or seizure made in accordance with the provisions of this act."

"Sec. 71. All bird, game and fish laws or parts of such laws formerly enacted and inconsistent herewith are hereby repealed."

Defendant asserts that the deer in question were not game animals in the ordinary and accepted meaning of the term, and were not embraced in or germane to the subject of the game law, as expressed in its title, and were not therefore within the provisions of said law. Section 28, article 4, of the Constitution of Missouri, provides that "no bill * * * shall contain more than one subject, which shall be...

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