Phillips v. State, 1981083

• Decision Date: 01 October 1999
• Docket Number: No. 1981083,1981083
• Citation: 771 So.2d 1066
• Parties: (Ala. 2000) Re: W.A. Phillips v. State
• Court: Alabama Supreme Court

771 So.2d 1066 (Ala. 2000)

Re: W.A. Phillips v. State

No. 1981083

OCTOBER TERM, 1999-2000

SUPREME COURT OF ALABAMA

MARCH 10, 2000

Ex parte W.A. Phillips

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

(Shelby Circuit Court, CC-95-1016;

Court of Criminal Appeals, CR-96-0001)

COOK, Justice.

W. A. Phillips was charged with hunting over a baited field, in violation of § 9-11-244, Ala. Code 1975. At trial, Phillips denied having any knowledge that the field in which he was hunting was baited. The trial court, over Phillips's objection, held that hunting over a baited field is a strict-liability offense. The trial court then instructed the jury that if Phillips had hunted over a baited field he could be found guilty even without proof that he baited the field or even knew that it was baited. The jury found Phillips guilty, and he appealed. The Court of Criminal Appeals affirmed Phillips's conviction, stating that hunting over a baited field is a "public-welfare offense" that requires no culpable mental state. Phillips v. State, [Ms. CR-96-0001, December 18, 1998] So. 2d (Ala. Crim. App. 1998).

Section 9-11-244, Ala. Code 1975, provides:

"No person at any time shall take, catch, kill or attempt to take, catch or kill any bird or animal protected by law or regulation of the State of Alabama by means, aid or use, directly or indirectly, of any bait such as shelled, shucked or unshucked corn or of wheat or other grain, salt or any other feed whatsoever that has been so deposited, placed, distributed or scattered as to constitute for such birds or animals a lure, attraction or enticement to, on or over the area where such hunter or hunters are attempting to kill or take them; provided, that such birds or animals may be taken under properly shocked corn and standing crops of corn, wheat or other grain or feed and provided further, migratory birds may be hunted under the most recent provisions established by the U.S. Fish and Wildlife Service or regulations promulgated by the Commissioner of the Department of Conservation and Natural Resources within the limits of the federal regulations."

Section 9-11-244 does not set out a culpable mental state. The Court of Criminal Appeals, relying on Morissette v. United States, 342 U.S. 246 (1952), and Walker v. State, 356 So. 2d 672 (Ala. 1977), held:

"[T]he offense defined in § 9-11-244 meets the requirements for a public welfare, or strict liability, offense. The statute does not designate a culpable mental state for the offense of hunting over a baited field. The clear intent of the statute is to prohibit the taking, catching, or killing of protected birds or animals that are lured to an area by bait, and violating the statute requires no proof of a connection of the offender with the bait. The offense does not have its origins in the common law; it is essentially regulatory; and it is restricted to a particular activity -- hunting. The punishment provided for violating the statute is not severe, see § 9-11-246, Ala. Code 1975. If it were not a strict liability offense, the statute would be difficult to enforce."

So. 2d at . Section 9-11-244 does not designate a culpable mental state, and the intent of the statute is clearly to prohibit the taking or killing of protected birds or other animals lured to an area by bait. However, the punishment for violating § 9-11-244 is not insignificant. Nor would the requirement of a culpable mental state render the statute unenforceable.

Traditionally, public-welfare offenses do not result in "grave damage to an offender's reputation." The State argues that "a conviction for hunting over bait is no more abhorrent than a conviction for a traffic violation." The state's analogy is too broad. Traffic violations come in all shapes and sizes. For example, a traffic citation for illegal parking rarely, if ever, damages the reputation of the offender. However, a citation for reckless driving or driving under the influence does damage the reputation of the offender. Hunting over a baited field has the potential to damage the reputation of the offender, because it carries the potential of jail time. A second conviction under § 9-11-244 can result in a fine and up to six months of jail time. § 9-11-246, Ala. Code 1975. Anytime an offender must serve a jail sentence, his reputation is invariably damaged. Thus, hunting over a baited field is not as benign an offense as illegal parking.

The Court of Criminal Appeals stated, and the State argues here, that if § 9-11-244 were held not to state a strict-liability offense, then the statute would be difficult to enforce. However, requiring some level of mental culpability would not render the statute any more difficult to enforce than any other statute. The language of § 9-11-244 is very similar to the language in the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. The Migratory Bird Treaty Act also seeks to prevent the taking of protected birds over a baited field and, like § 9-11-244, it does not set out a culpable mental state. The United States Court of Appeals for the Fifth Circuit, in United States v. Delahoussaye, 573 F.2d 910 (5th Cir. 1978), resolved the same issue that is now before this Court. Even though the Migratory Bird Treaty Act does not set out a level of mental culpability required for a person to be found guilty of violating that Act, the Fifth Circuit Court of Appeals held:

"We also conclude that [at] a minimum the bait or the callers must have been so situated that their presence could reasonably have been ascertained by a hunter properly wishing to check the area of his activity for illegal devices. There could be no justice for example, in convicting one who was barred by a property line from ascertaining that...