State v. Bennett

• Citation: 288 S.W. 50,315 Mo. 1267
• Decision Date: 23 November 1926
• Docket Number: 27019
• Parties: The State, Appellant, v. W. O. Bennett
• Court: United States State Supreme Court of Missouri

288 S.W. 50

315 Mo. 1267

The State, Appellant, v. W. O. Bennett

No. 27019

Supreme Court of Missouri

November 23, 1926

Appeal from Benton Circuit Court; Hon. C. A. Calvird Judge.

Reversed and remanded.

North T. Gentry, Attorney-General, and A. M. Meyer Special Assistant Attorney-General, for appellant.

(1) The information is sufficient. It sets forth definitely each and every fact which, by the statute, is a necessary element of the crime; and could be plead in bar of a subsequent prosecution for the same offense. Sec. 5645, R. S. 1919. (2) Title to naturae ferae is in the State, and the Legislature may prohibit the taking of game entirely, or permit it as a privilege, under such regulations and restrictions as it sees fit to impose. Sec. 5581, R. S. 1919; State v. Weber, 205 Mo. 36, 10 L. R. A. (N. S.) 1115, 120 Am. St. 715; State v. Heger, 194 Mo. 707; Greer v. Connecticut, 161 U.S. 19, 40 L.Ed. 793; State v. Snowman, 50 L. R. A. 545; State v Blount, 85 Mo. 543; City of St. Joseph v. Levin, 128 Mo. 588; St. Louis v. Baskowitz, 273 Mo. 543; LaCoste v. Dept. of Conservation, 151 La. 909; Manning v. Roberts, 179 Ky. 550. Where the State has absolute title, substantially as a private proprietor, for the benefit of its own people, it is subject to no restrictions not applicable to other private proprietors. McReady v. Virginia, 94 U.S. 391; People v. Lowndes, 139 N.Y. 455. (3) The Legislature may, in the exercise of its police power, limit the amount of game taken. It may regulate the manner of taking game. State v. Blount, 85 Mo. 543. It may regulate the manner of its disposition. State v. Randolph, 1 Mo.App. 15; Haggerty v. Ice Co., 143 Mo. 246; State v. Weber, 205 Mo. 36; State v. Heger, 194 Mo. 707. (4) The Legislature may enact reasonable laws to prevent the easy evasion of police regulations and game laws, in the exercise of its police power. LaCoste v. Department, 151 La. 909; City of St. Joseph v. Levin, 128 Mo. 594; State v. Weber, 205 Mo. 44; Haggerty v. Ice Company, 143 Mo. 247; State v. Randolph, 1 Mo.App. 15. Pursuant to this power it may require a licensee to permit inspection under penalty when the license is taken subject thereto. Manning v. Roberts, 179 Ky. 550; Lewis v. State, 14 Tex.App. 230; Kieper v. Louisville, 152 Ky. 691; Samming v. Cincinnati, 81 Ohio St. 142, 25 L. R. A. (N. S.) 686. The manner of enforcing game laws and police regulations is in the discretion of the Legislature. People v. Bootman, 180 N.Y. 1, 2 Ann. Cas. 226. (5) Sec. 5645, R. S. 1919, upon which this prosecution is based, does not authorize forcible search, but requires peaceable submission to inspection and count. This is not such a provision for search as is unreasonable in the exercise of the police power under Section 11, Article II, Constitution of Missouri, nor since defendant is not charged with a crime, is it compelling him to be a witness against himself in a criminal case, in violation of Section 23 of Article II. The statute does not provide that game inspected in its operation may be used in a criminal proceeding to convict the defendant of a violation of the game law, but the reasonable assumption is that the information so obtained might be used to secure a revocation of defendant's license, or to enable the game and fish department to estimate the number of quail and other birds killed. In either event, no constitutional provision is violated by this statute. Even though the information obtained were used in a prosecution, such provision would not be unreasonable as an exercise of the police power.

Henry P. Lay for respondent.

(1) Sec. 5645, R. S. 1919, violates the provision of Section 11 of Article II of the Constitution of Missouri, "that the people shall be secure in their persons, papers, homes and effects from unreasonable search and seizures." State v. Owen, 259 S.W. 100; State v. Lock, 259 S.W. 116; Boyd v. United States, 116 U.S. 616; Entick v. Carrington, 19 Howell St. Tr. 1029. (2) The legislative attempt to compel a person to produce his property by imposing a penalty for refusing to do so, is as much in violation of the constitutional prohibition against unreasonable searches as the making of such a search. Boyd v. United States, 116 U.S. 616; State v. Owen, 259 S.W. 100; State v. Lock, 259 S.W. 116. (3) Section 5645 is also in conflict with the provision of Section 23 of Article II of the Constitution which provides "that no person shall be compelled to testify against himself in a criminal case." Boyd v. United States, supra; State v. Owen, supra; State v. Lock, supra; Ex parte Carter, 166 Mo. 604; State ex rel. v. Simmons Hdw. Co., 109 Mo. 118. And a person may not be compelled to furnish any one of the links necessary to a conviction. Ex parte Carter, supra; Ex parte January, 295 Mo. 653. (4) Constitutional provisions for the security of person or property should be liberally construed for the protection of the citizen. Boyd v. United States, supra; Salter v. State, 2 Okl.Cr. 464.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

An amended information was filed charging that defendant, having procured a hunter's license in Benton County, refused to permit the deputy game-and-fish commissioner to inspect and count the number of quail in defendant's possession on November 10, 1925. The court sustained a motion to quash the information on the grounds that Section 5645, Revised Statutes 1919, is in conflict with the provisions of Sections 11 and 23 of Article 2 of the Constitution of Missouri; that it "deprives the defendant of the equal protection of the law," and because the information does not state facts sufficient to constitute an offense under the Constitution and laws of Missouri. An exception was saved, the defendant was discharged, and the State appealed.

The applicable provisions of the Fish and Game Act (R. S. 1919) are:

"Sec. 5581. Title to birds, fish and game in state. -- The ownership of and title to all birds, fish and game, whether resident, migratory or imported, in the State of Missouri, not now 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, killing or having in possession shall consent that the title of said birds, fish 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, 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."

Section 5596 limits the number of quail, etc., that a licensed hunter may kill or have in his possession in any one day or at one time.

"Sec. 5598. License to hunt or fish. -- It shall be unlawful for any person after the passage of this article to hunt or fish in this State without first obtaining a license permitting him or her to do so; such license shall be dated when issued and shall authorize the person named therein to hunt and fish during the calendar year of issue, and then subject only to the regulations and restrictions as provided by law: Provided, no license shall be required to fish in privately owned lakes or ponds where a fee is charged for the privilege of fishing. [Laws 1919, p. 346.]"

"Sec. 5645. Inspection and counting of birds, animals, and game -- penalty. -- It is hereby made the duty of every person participating in the privileges of taking or possessing fish, birds, animals, and game, as permitted by this article, to permit the game and fish commissioner or his deputies to inspect, and count such fish, birds, animals, and game, to ascertain whether the requirements of this article are being faithfully complied with. Any person who shall refuse to comply with a demand to permit such inspection and count by any authorized officer of this State, or who shall interfere with such officer or obstruct such inspection or count shall be guilty of a misdemeanor, and upon conviction, shall be fined not less than twenty-five dollars nor more than one hundred and fifty dollars. [Laws 1915, p. 295.]"

It is argued by respondent that Section 5645, supra, is repugnant to the provisions of Sections 11 and 23 of Article 2 of the Constitution of Missouri, that the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures, and that no person shall be compelled to testify against himself in a criminal case.

In Boyd v. United States, 116 U.S. 616, cited by respondent, an order had been made by the trial court on motion of the Government attorney requiring the defendant to produce in court his private books, invoices and papers otherwise the allegations of the attorney would be taken as confessed in accordance with the provisions of the act under which the order was made. It was held that this was tantamount to an unreasonable search and seizure of the private papers of the accused and violative of the Fourth and Fifth Amendments of the Federal Constitution. In the course of the opinion, Mr. Justice Bradley said: "The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo." See also 35 Cyc....