Commonwealth v. Gilbert
| Decision Date | 29 November 1893 |
| Citation | 160 Mass. 157,35 N.E. 454 |
| Parties | COMMONWEALTH v. GILBERT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The indictment charged that defendant, on the 29th day of March in the year 1893, did have in his possession and did offer and expose for sale, and did sell, one trout said trout having been taken in this commonwealth, and not then and there being alive. To this indictment defendant pleaded not guilty. It was admitted, however, that the defendant did, on the day charged in the complaint, sell one dead trout, as therein alleged. The defendant claimed that said trout was one which had been artificially raised propagated, and maintained by him, and offered to prove the facts as to the method of hatching, raising, and maintaining said trout, which also applied to all other trout owned by him, claiming that, if he did prove these facts to the satisfaction of the jury, he was entitled to an acquittal, on the ground that the statute against selling trout between certain dates applied only to wild trout, or trout that are hatched and grow in a state of nature, without artificial aid in propagating and maintaining them. The commonwealth did not contest the truth of the facts offered to be proved by the defendant, but claimed that such evidence would furnish no defense against the indictment, and was inadmissible for that purpose. The presiding judge so ruled and excluded the evidence. The defendant also asked the court to rule that the statutes of this commonwealth provide no penalty against a person for having in his possession and offering and exposing for sale and selling dead brook trout artificially cultivated, propagated, and maintained by him in this commonwealth. If the statutes of this commonwealth impose any penalty upon the defendant for having in his possession and offering and exposing for sale and selling dead brook trout which were kept and confined in artificial ponds upon his own premises, and which were artificially cultivated, propagated, and maintained in the manner the defendant offered to prove that his were confined, cultivated, propagated, and maintained, then the statute, so far as it applies or relates to such trout, is unconstitutional. The court refused to give the rulings as requested.
Robert O. Harris, for the Commonwealth.
T.E. Grover, for defendant.
There are two questions in this case, namely, whether the defendant's act was within the true meaning of the statute forbidding the sale of trout; and, if so, whether the statute is constitutional.
1. The defendant contends that the penalty imposed by Pub.St. c. 91 § 53, for selling trout, does not extend to the sale of trout which have been artificially propagated and maintained. Whatever force this contention might have if section 53 stood alone, a reference to other sections of the same chapter, and to the history of this legislation, makes it clear that such trout are not exempted. The chapter contains many provisions for the protection of trout and other useful fishes, and among them are those for the encouragement of their artificial propagation and maintenance. No question is made that section 53 is applicable to all other protected trout except such as have been artificially propagated or maintained; as, for example, to trout found in such small or great ponds and such streams as are specially protected by the provisions of sections 10, 12, 14, 23, 24, 27. By section 26 it is provided that "fishes artificially propagated or maintained shall be the property of the person propagating or maintaining them; and a person legally engaged in their culture and maintenance may take them in his own waters at pleasure, and may have them in his possession for purposes properly connected with said culture and maintenance, and may at all times sell them for these purposes, but shall not sell them for food at seasons when their capture is prohibited by law." A close season for trout was fixed by section 51, which has since been changed by St.1884, c. 171. Section 53, by its terms, imposes a penalty upon every person who "sells or offers or exposes for sale or has in his possession a trout,"...
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