Hyde v. State

• Decision Date: 21 April 1908
• Parties: HYDE v. STATE.
• Court: Alabama Supreme Court

46 So. 489

155 Ala. 133

HYDE v. STATE.

Supreme Court of Alabama

April 21, 1908

Appeal from Bibb County Court; W. L. Pratt, Judge.

John Hyde was convicted of hunting on the lands of another without written permission, and appeals. Affirmed.

W. H Wright and Henry Fitts, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

The Legislature, at the first session held in 1907, enacted a statute, entitled "An act relating to the preservation propagation and protection of game animals, wild birds and fish; establishing the department of game and fish, creating the office of state game and fish commissioner, and providing for his election and compensation; creating the office of county game and fish wardens, and deputy game and fish warden, and providing for their appointment and compensation creating a game and fish protection fund and appropriating money therefrom." This act was approved February 19 1907, and may be found in Gen. Acts 1907, at page 81. Section 44 of the act is in this language: "That it is hereby made unlawful for any person to hunt on the lands of another without first having obtained from the owner or agent thereof a written permission to do so, said written permission shall be good for one year from date of issuance unless otherwise provided therein, and said permission shall expire unless otherwise provided at the expiration of one year from the date of issuance. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction shall be fined not less than ten nor more than twenty-five dollars." Section 45 1/2 of the act is in this language: "The provisions of this act shall not apply to persons hunting any of the birds or animals of this state which are not protected by the provisions of this act." It is clear that section 45 1/2 must be construed as a proviso to section 44; so that a person not hunting game animals or birds as the same are defined by the act would not be required to obtain the written consent required by section 44.

The affidavit on which this prosecution was commenced in the justice court reads as follows: "The state of Alabama, Bibb County. Personally appeared before me, A. H. Gentry, a justice of the peace in and for said county, C. H. Cole, who, being duly sworn, says on oath that within 60 days before making this affidavit, in said county, John Hyde did hunt on the lands of another without written permission, against the peace and dignity of the state of Alabama." The jurat and signature are omitted here. It is first insisted, on demurrer, that the affidavit is defective, because it fails to allege that the hunting was of some of the birds or animals protected by the game law, and therefore that no violation of law is charged. This position is not well taken. Notwithstanding section 45 1/2 must be construed in connection with section 44, as a proviso to that section, the proviso being embodied in a separate clause of the statute from that creating the offense, it is not necessary that the affidavit should aver that the hunting was of birds or animals protected by the statute; the settled rule being that, if the act charged as a violation of the statute comes within the influence of the proviso, this would constitute a defense more properly coming from the defendant. Grattan's Case, 71 Ala. 344, and authorities there cited; Bellinger's Case, 92 Ala. 86, 9 So. 399; Sims's Case, 135 Ala. 61, 33 So. 162; Brazelton's Case, 66 Ala. 96; 22 Cyc. p. 344; 10 Ency. Pl. & Pr. p. 495. This rule prevails in respect to indictments. A fortiori it is applicable to complaints made before justices of the peace in the form of affidavits, in which that particularity required to be observed in indictments is dispensed with. Brazelton's Case, ubi supra; Brown's Case, 63 Ala. 97.

It is next insisted that, in so far as section 44 is concerned, the act is unconstitutional as embracing a subject not within the police power of the state to deal with or legislate upon. Speaking generally with respect to the act, it may be said that the right of the state, in the exercise of the police power, to make regulations for the preservation of game and fish, restricting their taking and molestation to certain seasons of the year and under prescribed rules and regulations, is recognized and established, not only in the common law of England, but by the decisions of the courts of last resort in many of the states, as well as by the Supreme Court of the United States.

In the case of Geer v. State of Connecticut, 161 U.S. 519 16 S.Ct. 600, 40 L.Ed. 793, will be found an exhaustive and interesting discussion of the question by Justice White, who wrote the majority OPINION. In that opinion, after discussing the nature of the property in game, and asserting that the ownership of wild animals (so far as they are capable of ownership) is in the state, not as proprietor, but in its sovereign capacity, as the representative, and for the benefit, of its people, the learned writer announces the further conclusion that the Legislature...