Magner v. People of State

• Citation: 1881 WL 10415,97 Ill. 320
• Parties: JAMES MAGNERv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 03 February 1881
• Court: Supreme Court of Illinois

97 Ill. 320

1881 WL 10415 (Ill.)

JAMES MAGNER

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Feb. 3, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Criminal Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

This is a prosecution for an alleged violation of sections 1, 2 and 6 of what is known as the Game law of this State, entitled “An act to revise and consolidate the several acts relating to the protection of game, and for the protection of deer, wild fowl and birds,” approved May 14, 1879.

Section 1 is as follows: “That it shall be unlawful for any person or persons to hunt or pursue, kill or trap, net or ensnare, or otherwise destroy, any wild buck, doe or fawn, or wild turkey, between the fifteenth day of January and the first day of September of each and every year; or any pinnated grouse or prairie chicken between the first day of December and the fifteenth day of August of the succeeding year; or any quail or ruffed grouse between the first day of January and the first day of October of each and every year; or any wild goose, duck, brant or other water fowl between the first day of May and the fifteenth day of August of each and every year. And it shall further be unlawful to shoot, kill or destroy, or attempt to shoot, kill or destroy, any wild goose, duck, brant or other wild fowl during the night time, at any season of the year; or any woodcock between the first day of January and the fourth day of July in each and every year. And any person so offending shall, for each and every offence, be deemed guilty of a misdemeanor, and on conviction shall be fined in any sum not less than five dollars nor more than twenty-five dollars, and costs of suit, and shall stand committed to the county jail until such fine is paid: Provided, that such imprisonment shall not exceed ten days, and the killing of each bird or animal, as specified herein, shall be deemed a separate offence.”

Section 2 is as follows: “It shall be unlawful for any person to buy, sell or have in possession any of the animals, wild fowls or birds mentioned in section one of this act, at any time when the trapping, netting or ensnaring of such animals, wild fowls or birds shall be unlawful, which shall have been entrapped, netted or ensnared contrary to the provisions of this act; and any person so offending shall, on conviction, be subject to the same fine and penalties, to be enforced and collected in the same manner as is provided in section one of this act.”

Section 6 is as follows: “No person or persons shall sell, or expose for sale, or have in his or their possession for the purpose of selling or exposing for sale, any of the animals, wild fowls or birds mentioned in section one of this act, after the expiration of five days next succeeding the first day of the period in which it shall be unlawful to kill, trap or ensnare such animals, wild fowls or birds. Any person so offending shall, on conviction, be fined and dealt with as specified in section one of this act; and selling, exposing for sale, or having the same in possession for the purpose of selling or exposing for sale, any of the animals or birds after the expiration of the time mentioned in this section, shall be prima facie evidence of the violation of this act: Provided, that the provisions of this act shall not apply to the killing of birds by or for the use of taxidermists for preservation, either in public or private collections, if so preserved.”

And the 7th section is as follows: “The provisions of this act shall not be construed as applicable to any express company or common carriers into whose possession any of the animals, wild fowl or birds herein mentioned shall come in the regular course of their business for transportation, whilst they are in transit through this State from any place without this State where the killing of said animals, wild fowl or birds shall be lawful. But notwithstanding this provision, the having or being in possession of any such animals, wild fowl or birds as are mentioned in section one, upon any of the days upon which the killing, entrapping, ensnaring, netting, buying, selling or having in possession any such animals, wild fowl or birds, shall be unlawful by the provisions of this act, shall be deemed and taken as prima facie evidence that the same was ensnared, trapped, netted or killed in violation of this act.”

The facts are embodied in the following statement of agreed case:

“The above case, now being in the above entitled court, on appeal from George A. Meech, justice of the peace of Cook county, said appeal having been taken by said defendant for the purpose of presenting the questions involved in said case, so that an early determination thereof be reached. The following facts are agreed upon:

1. That James Magner is a retail dealer in game, and keeps a game market at 76 Adams street, in the city of Chicago, in said Cook county; that on January 14, 1880, said James Magner bought on South Water street, in said city of Chicago, of a certain dealer, one box of quail, containing 144 quail; that said Magner took said box of quail to his said market, and sold said quail at retail, in different amounts; that on the 15th day of January, 1880, said Magner sold to one James J. Gore, twelve quail, being part of said box of 144 quail, at said market, said Magner and Gore both being citizens of the State of Illinois; that said quail were bought in the State of Illinois, on January 14, 1880, and sold in the State of Illinois, on January 15, 1880.

2. That said James Magner, a citizen of Illinois, bought of William Johnson, of Leavenworth, in the State of Kansas, at said Leavenworth, one box of quail, containing 144 quail, on December 20, 1879; that said box of quail, at said date, was shipped directly to said Magner, at his said market, and, on December 23, received by him; that said Magner sold said box of quail at said market, to said James J. Gore, on January 15, 1880, said Gore being a citizen of the State of Illinois.

3. That said James Magner bought a box of quail, in Leavenworth aforesaid, on January 10, 1880, and sold the same at said city of Chicago, on January 15, 1880, to said James J. Gore, said Gore and Magner being citizens of the State of Illinois.

4. That said James Magner bought said box of quail, containing 144 quail, in Leavenworth, as aforesaid, on January 10, 1880, and retailed, (not sold in bulk or original package,) said quail, and sold twelve of said quail to said James J. Gore, on January 15, 1880, at said city of Chicago, both said Magner and Gore being citizens of the State of Illinois.

5. That said James Magner bought said box of quail in Leavenworth aforesaid, on December 20, 1879, and retailed (not sold in bulk or original package) said quail, and sold twelve of said quail to said James J. Gore, on January 15, 1880, said Magner and Gore both being citizens of the State of Illinois.

6. That said James Magner, being a citizen of the State of Illinois, and doing business as aforesaid, in said city of Chicago, as an importer from another State, bought one box of quail, containing 144 quail, from a citizen of Kansas, on December 20, 1879, and sold said box of quail, in the original package, to one Thomas Jones, a citizen of New York, at said market, on January 15, 1880.

7. That said James Magner, being a citizen of the State of Illinois, and doing business in the place aforesaid, as an importer from another State, bought one box of quail, containing 144 quail, of a citizen of Kansas, January 10, 1880, and sold said box of quail in the original package, to one Thomas Jones, a citizen of New York, at said market, on January 15, 1880.

8. That said James Magner, being a citizen of the State of Illinois, and doing business as aforesaid, in said city of Chicago, as an importer from another State, bought one box of quail, containing 144 quail, from a citizen of Kansas, on December 20, 1879, and sold twelve of said quail (not the original package) to one Thomas Jones, a citizen of New York, at said market, in said city of Chicago, on January 15, 1880.

9. That said James Magner, being a citizen of the State of Illinois, and doing business as aforesaid, in said city of Chicago, as an importer from another State, bought one box of quail, containing 144 quail, from a citizen of Kansas, on January 10, 1880, and sold twelve of said quail (not the original package) to one Thomas Jones, a citizen of New York, at said market, in said city of Chicago, on January 15, 1880.

10. That said James Magner, a citizen of Illinois, sold forty-eight quail, at Chicago, to Thomas Jones, of New York, on January 15, 1880, said quail having been killed in Kansas, and shipped from there to said Magner, at the city of Chicago.

11. It is also agreed, that game, in large quantities, killed in other States, is shipped to, and sold in, the city of Chicago; that a large trade of that character has grown up in said city of Chicago, amounting to at least $200,000 per year; and also a large amount of game from the State of Illinois is sold in said city of Chicago.

12. It is also agreed, that the game covered by this case, was in entirely fit condition for use as food, as far as game can be during the season the game law of the State has forbidden the killing or sale of the same.

13. It is agreed, that the game laws of each and all the States may be considered as in evidence.”

The prosecution was commenced before a justice of the peace of Cook county. Judgment was there rendered against appellant, from which he appealed to the circuit court of that county. The trial in that court also resulted in a judgment against appellant, on each specification wherein was an admission of fact, as before herein set forth.

The present appeal is prosecuted to reverse that judgment.

Mr. EMERY A. STORRS, for the appellant, after stating the facts, and citing the various sections of the Game law applicable, made the following...