Pharr v. State, 55015

Decision Date05 December 1984
Docket NumberNo. 55015,55015
Citation465 So.2d 294
PartiesMilton V. PHARR v. STATE of Mississippi.
CourtMississippi Supreme Court

Thomas H. Comer, Jr., Comer & Jenkins, Booneville, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

Headlighting deer is a sorry form of human behavior made unlawful by the wildlife conservation laws of this state. The deer, usually a doe, hit with the blinding light stands stupified and is slaughtered. In addition to his unsportsmanlike conduct, the poacher operates at night and endangers others each time he fires. He is of Snopesean genre.

Milton V. Pharr stands convicted of headlighting deer and other related offenses. His sentences include time and fines and suspension of his privilege to hunt. We affirm.

II.

A.

Prior to the date in question, officials of the State Department of Wildlife Conservation had been receiving complaints of "headlighting" in the Riverbend area in rural northern Leflore County, Mississippi. In the early morning hours of February 21, 1982, Robert Neely and Wardell Pittman, both officers of the Wildlife Conservation Department, went to this area to establish separate stake-outs.

At approximately 3:00 a.m. Officer Neely received a radio call from Officer Pittman to the effect that Pittman had heard gunshots. Neely got out of his truck. He could hear a vehicle on a public gravel road. Two or three minutes later Neely observed a slow-moving pick-up truck approaching from the east. A spotlight, coming from the truck, was being shined out over the fields on both sides of the road. According to Neely, "It was working both sides of that road there, working fields and woods". After the truck passed Neely, he followed it, his lights off.

The truck passed the Minter City Gin, turned south and ultimately reached and turned onto State Highway No. 8. At that point Neely cut on his headlights and his "blue light". The truck stopped, but when Neely stopped and got out, the suspects took off again. Neely gave chase, ultimately forcing the suspect truck off the road.

In the truck Officer Neely found

(1) four men, including Milton V. Pharr, the Defendant below and Appellant here;

(2) two dead deer, both still warm and with blood running from their bodies;

(3) a Q-beam spotlight;

(4) a seven millimeter Magnum rifle, three spent shell casings and other ammunition; and

(5) one hand flashlight.

Blood was on the tailgate of the truck and on the bumper.

On this date, February 21, 1982, deer hunting was illegal. 1 The property on which the suspect vehicle was operating while Officer Neely observed it was known as Annapeg Plantation owned by the Stainback family. The property was posted with signs at the entrances to the property and along the roads three to every mile. These posted signs had been in place more than three months prior to the incident in question.

B.

Milton V. Pharr and his three companions were in due course charged with eight game and hunting law violations, misdemeanors all. 2 All were brought to trial before the County Court of Leflore County and convicted.

Pharr and two of the others then appealed to the Circuit Court of Leflore County where, on March 28, 1983, they were afforded consolidated trials de novo. That same day the jury found all three, including Pharr, guilty

(a) on three counts of headlighting deer in violation of Miss.Code Ann. Sec. 49-7-95 (Supp.1983), for which each has been sentenced to 30 days imprisonment, fined $1,000 on each count, and stripped of all hunting privileges for the next twelve months;

(b) on one count of trespassing in violation of Miss.Code Ann. Sec. 97-17-93 (Supp.1983), for which each has been fined $250; and

(c) upon two counts of possession of deer out-of-season in violation of Miss.Code Ann. Sec. 49-7-37 (Supp.1983), for which each has been fined $50 on each count.

Following the usual post-trial motions, Pharr has appealed 3 to this Court where his fundamental complaints are that the evidence does not support his convictions and that in any event the state is doubling up on him, turning what is a single set of events into six separate charges and convictions and ultimately sentences. For the reasons described below, we reject all of Pharr's assignments of error and affirm.

III.

A.

Our law is the witness and external deposit of the values and culture of our society. 4 Hunting and the outdoors have supplied much of that culture. They have informed our values and generated an ethical code of their own, much of which has been enacted within the wildlife conservation laws of this state.

Our Presiding Justice Roy Noble Lee understands these truths. In Strong v. Bostick, 420 So.2d 1356, 1364 (Miss.1982), he included himself among the many men who

feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall morning; or has never heard a wild turkey gobble in April or seen him strut during mating season; or has never watched a deer bound through the woods and fields, or heard a pack of hounds run a fox, or tree a coon (raccoon); or has never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook; has never lived.

420 So.2d at 1364 [Emphasis added]

Moreover, Justice Lee has reminded us that

Present generations owe posterity the obligation to protect and conserve wildlife, a valuable and essential natural resource, in order that future generations may have game and fish for their enjoyment, pleasure and benefit.

420 So.2d at 1364.

In fulfillment of that obligation, our legislature has made the sort of conduct with which we are here concerned unlawful. Yet, more than the public policy of wild game conservation is served by this legislation. We here enforce the positive law's embodiment of the ethics of the hunt.

With insight and sensitivity, our most literate hunter, speaking of his short story, "The Bear", has said pursuit is the essence of the hunt, but

not only to pursue but to overtake and then have the compassion not to destroy, to catch, to touch, and then let go because then tomorrow you can pursue again. If you destroy it, what you caught, then it's gone, it's finished. And that to me is sometimes the greater part of valor..., not to destroy what you have pursued. The pursuit's the thing, not the reward, not the gain." 5

The thrill of the chase, the fair and honorable pursuit and not the kill undergird the ethics of the hunter.

This case concerned the slaughter of doe at night. As we review today's facts, we recall that old Ike McCaslin en route to deer camp in the Delta once said

The only fighting anywhere that ever had anything of God's blessing on it has been when men fought to protect does and fawns. 6

We juxtapose against Old Ike's double entendre Henry Wyatt's pragmatism

"We don't kill does because if we did kill does in a few years there wouldn't even be any bucks left to kill, Uncle Ike". 7

Headlighting is unlawful in this state whether its victims be buck, doe or fawn. Variously denominated "spotlighting", "jacklighting", "shining deer", or simply "headlighting", this conduct calls for more powerful words. Minnesota uses the term "nefarious". State v. Suess, 236 Minn. 174, 183, 52 N.W.2d 409, 415 (1952). The New Mexico legislature has employed the descriptive "despicable". State v. Barber, 91 N.M. 764, 765, 581 P.2d 27, 28 (1978). In this state "Snopesean" seems somehow appropriate.

In the first place, we are concerned with most unsportsmanlike conduct. We do not purport to understand the physiological process within the deer hit with a bright light at night but find that it has been similarly described by courts in Ohio 8, Minnesota 9, Georgia 10 and Virginia 11. As noted in State v. Suess, 236 Minn. 174, 52 N.W.2d 409 (1952),

"...such animals freeze in their tracks when the rays of a spotlight are suddenly cast upon them in the darkness of the night and are then easy prey to the deadly aim of an illegal hunter".

236 Minn. at 183, 52 N.W.2d at 415.

Not only is headlighting unsportsmanlike vis' a vis the deer, the genuine sportsman is deprived of legitimate hunting opportunities.

Poaching in general and headlighting in particular are the product of baser motives, the thrill of the quick and easy kill and the pursuit of profit. Precht, "To Catch a Poacher", Southern Outdoors 38, 39 (Jan.-Feb.1982).

Discharge of firearms at night presents obvious dangers. Hunting after dark is universally condemned. See, e.g., Miss.Code Ann. Sec. 49-7-59 (Supp.1983). One does not have to look far to find documented cases where deer headlighters have in the pursuit of their sorry course killed or wounded innocent bystanders 12, game officials 13 and valuable livestock 14.

For these and other reasons, the practice of headlighting has been made unlawful in practically every state in the Union. State v. Morrison, 341 N.W.2d 635, 637-638 (S.D.1983) (cases cited therein). It has been made expressly unlawful by the legislature of this state and stiff penalties provided. Such, in and of itself, is not enough, however, for the Snopesean poacher infects our times, and

the woods and fields he ravages and the game he devastates will be the consequence and signature of his crime and guilt, and his punishment. 15

Informed by these thoughts we proceed to our institutional responsibility: the right interpretation and application of the law followed by the adjudication of this criminal appeal.

B.

Pharr has been charged, convicted and sentenced for three separate violations of the headlighting statute, Miss.Code Ann. Sec. 49-7-95 (Supp.1983) which provides as follows:

Any person who hunts or takes or kills any deer by headlighting or by any lighting device, shall, upon conviction thereof, be fined not less than five hundred...

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