McMahon v. State

Decision Date06 January 1904
Docket Number13,242
Citation97 N.W. 1035,70 Neb. 722
CourtNebraska Supreme Court

ERROR to the district court for Boone county: JOHN R. THOMPSON JUDGE. Affirmed.


Henry C. Vail and S. S. McAllister, for plaintiffs in error.

Frank N. Prout, Attorney General, Norris Brown and C. E. Spear, for the state.




This is a proceeding in error prosecuted from a judgment of the district court for Boone county by D. B. McMahon, W. E. Harvey and P. E. McKillop, who were convicted of having in their possession, contrary to law, certain prairie chickens during the closed season. It is contended first, that the judgment is not sustained by sufficient evidence; second, the defendants were found jointly guilty of having in their possession five prairie chickens, and the court imposed a fine of $ 25 against each defendant, making $ 75 in all, and it is claimed this fine is excessive; third, it is contended that the act under which the conviction was had violates that portion of the constitution which provides, "all penalties shall be proportioned to the nature of the offense"; fourth, that the act is unconstitutional, in that it contravenes the constitutional provision that no act shall contain more than one subject, which shall be clearly expressed in the title; fifth, that the act is in violation of section 26, article V, which declares, "No other executive state officer shall be continued or created, and the duties now developing upon officers not provided for by this constitution shall be performed by the officers herein created."

These objections, so far as necessary, will be considered in their order. It is disclosed by the record that the deputy game warden came upon the plaintiffs in error in Boone county, while they were engaged in shooting chickens. While still some distance away from them, he saw three men shooting, and saw some prairie chickens fall, and upon coming up to the party he found three guns in possession of the party and five prairie chickens in one of the buggies. It seems that two other persons were present in the party besides plaintiffs in error, and that they had two buggies. One of the men in the party seems to have been a man residing in the neighborhood, who departed on foot. The others took their departure in the buggies. All of the chickens were found in the buggy occupied by plaintiffs in error McMahon and Harvey. No testimony was offered by any of the plaintiffs in error, and it was upon the testimony of the deputy game warden that the conviction was had. We have examined the testimony carefully and are of the opinion that it is sufficient to sustain the judgment. There can be no possible question as to McMahon and Harvey, and as to McKillop, there is no question that he was present in the party, and was engaged with the other parties in the unlawful hunting of the chickens. We do not think that the mere circumstance that he was not in the buggy in which the game was found is sufficient to exculpate him. "Possession," as stated in Redfield v. Utica & Syracuse R. Co., 25 Barb. 54, "is the detention or enjoyment of a thing which a man holds or exercises by himself, or by another who keeps or exercises it in his name." To the same effect is State v. Washburn, 11 Iowa 245. In offenses of this grade, the law does not distinguish between principals and accessories, and all who participated in any degree are alike guilty. Wagner v. State, 43 Neb. 1, 61 N.W. 85. The evidence can not be said to be insufficient to convict McKillop.

A fine of $ 5 was imposed upon each defendant for each of the five chickens found, and it is contended that this is excessive. The settled rule, as we understand, is that, where two or more persons concur in the commission of an offense, then each offender is liable to a separate punishment. Curtis v. Hurlburt, 2 Conn. 309. The distinction between principal and accessory not being...

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13 cases
  • State v. Cox
    • United States
    • Oregon Supreme Court
    • March 25, 1919
    ...of the owner's pocket, when the latter struck off the hand of the thief, so that the book dropped back into the pocket. McMahon v. State, 70 Neb. 722, 97 N.W. 1035, declares that game unlawfully killed was in the possession of one who was in a hunting party, although it found in a buggy in ......
  • Reynolds v. State
    • United States
    • Florida Supreme Court
    • December 10, 1926
    ...relating to possession. See Cotton v. Comm., 200 Ky. 349, 254 S.W. 1061; State v. Meyers, 190 N.C. 239, 129 S.E. 600; McMahon v. State, 70 Neb. 722, 97 N.W. 1035; Autrey v. State, 18 Ga.App. 13, 88 S.E. Simmons v. Comm., 210 Ky. 33, 275 S.W. 369; Terry v. State, 101 Tex. Cr. R. 267, 275 S.W......
  • Hayes v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 15, 1940
    ...unusual punishments inflicted." In Ex parte Meyers, 55 Okl.Cr. 75, 24 P.2d 1011, 1012, the court quoted with approval from McMahon v. State, 70 Neb. 722, 97 N.W. 1035, as "A large discretion is vested in the Legislature in the fixing of penalties designed to prevent the commission of certai......
  • Seibert v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 2, 1969
    ...Criminal Law § 1978b and the cases of Ex parte Meyers, 55 Okl.Cr. 75, 24 P.2d 1011, 1012, and a Nebraska case styled McMahon v. State, 70 Neb. 722, 97 N.W. 1035. The substance of these citations is that punishment set forth for a particular crime is not excessive, unless it is so excessive ......
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1 provisions
  • Neb. Const. art. I § I-15 Penalties; Corruption of Blood; Transporting Out of State Prohibited
    • United States
    • Constitution of the State of Nebraska 2022 Edition Article I
    • January 1, 2022
    ...N.W. 412 (1911). Penalty imposed by statute is not unconstitutional unless so excessive as to shock sense of mankind. McMahon v. State, 70 Neb. 722, 97 N.W. 1035 Enforcement of penalty after proper notice and failure to remove fence or other obstruction from line of newly established highwa......

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