State v. Burk

Decision Date26 January 1921
Docket Number15938.
CourtWashington Supreme Court
PartiesSTATE v. BURK.

Department 1.

Appeal from Superior Court, Yakima County; Geo. B. Holden, Judge.

J. S Burk was convicted of killing and having in possession an elk, etc., and he appeals. Reversed, and cause remanded for new trial.

Wm. B. Clark, of Yakima, for appellant.

O. R Schumann and J. Lenox Ward, both of Yakima, for the State.

BRIDGES J.

The defendant was charged by a criminal complaint, lodged in the justice of the peace court of Yakima county, with unlawfully killing and having in his possession and under his control an elk, including the hides, horn, and hoofs. At the same time another criminal complaint was filed against the defendant in the same court, wherein an identical charge was made concerning another elk. The two cases have been consolidated for the purposes of trial and appeal. It was claimed by the state that the defendant had violated section 5395-33, Rem. Code, which, in substance, provides that no person shall hunt, catch, take, kill or have in his possession any elk or part thereof. The defendant was convicted. He appealed to the superior court, where he was again convicted. A new trial was granted him, however, in that court, and in another trial he was again convicted, and has now appealed to this court. He has at all times admitted that he killed the two elk and had their dead bodies in his possession, until the same were surrendered by him to the county game officer. As a defense to such killing he sought to justify himself on the ground that the elk were, at the time of the killing, in the act of damaging and destroying his crops.

As we understand it from the argument, the state has raised two chief questions in support of the judgment of conviction. They are: First, that the appellant will not be heard, under any circumstances, to justify his violation of the statute on the ground that the elk were damaging his property; and, second, that if it be conceded that in a case of this character the defendant may so justify his act, then his testimony in this case was insufficient to show any justification, and was properly taken by the court from the jury. The court heard appellant's justification testimony, but held that it was wholly insufficient, and did not tend to justify his act, and it refused to submit it to the jury. The result was that the only testimony before the jury was that the elk had been killed by the appellant, and of course, the jury could do nothing but return a verdict against him. We shall discuss the respondent's two proposition in the order mentioned.

The argument of the state is to the effect that one may not justify himself in the killing of an elk, in violation of express provisions of the statute, simply because the elk, at the time of the killing, may be damaging, or even threatening to destroy, the property of the person charged with the killing. It is argued that when the Legislature enacted this statute for the protection of elk it must have realized that they might trespass upon the lands of private individuals and do material damage to crops or domestic animals, but determined that the preservation of the elk was of such importance to the people of the state as that the private individual should bear his loss for the good of the public. This argument is more plausible than sound. The state places its reliance largely upon the case of Barrett v State, 220 N.Y. 423, 116 N.E. 99, L. R. A. 1918C, 400, Ann. Cas. 1917D, 807, decided in 1917. The Legislature of the state of New York had passed and put into force a comprehensive law with reference to the protection and increase of the beaver. It was made a criminal offense to kill, destroy, or in any manner interfere with this animal. The statute authorized thorized the state officers to obtain, by purchase or otherwise, beaver, and to place them in favorable locations within the state. Acting by virtue of this law, the state authorities turned loose four beaver upon Eagle creek, in the state of New York. These four beaver and their increase remained in this locality. Close by Mr. Barrett owned a small tract of land, chiefly valuable for building sites, and it was so made valuable because of the great number and character of the trees growing thereon. From time to time, these beaver, following their instincts, had either cut down, or girdled and killed, a large number of these valuable trees, and threatened to destroy all the rest. Mr. Barrett began suit against the state to recover his damages. In the lower court he recovered. The Appellant Division of the court (173 A.D. 986, 158 N.Y.S. 1055) affirmed the award to him. The Court of Appeals, however, in the case cited, reversed the lower court, and held that the plaintiff could not recover. The court held that the state had a constitutional right to pass laws for the protection and preservation of the beaver and other wild animals, and further said:

'Wherever protection is accorded, harm may be done to the individual. Deer or moose may browse on his crops; mink or skunks kill his chickens; robins eat his cherriers. In certain cases the Legislature may be mistaken in its belief that more good than harm is occasioned. But this is clearly a matter which is confided to its discretion. It exercises a governmental function for the benefit of the public at large and no one can complain of the incidental injuries that may result.'

That, however, was a civil case, and it was properly decided that, in no event, could the state be held liable to private individuals for damage done by animals protected by state law. While some things announced in the opinion might, at first glance, appear to be applicable to this case, yet we must assume that the court used its language as applicable to a civil action, and not to a criminal case such as this.

If in this case the appellant had undertaken to defend on the ground that he killed the elk for the protection of his life, or that of some member of his family, then, unquestionably, such defense would have been available. But the constitutional right is to defend, not only one's life, but one's property. The difference in the justification in killing a protected elk in defense of one's life and killing one in defense of one's property is only in degree. Undoubtedly, a stronger showing would have to be made by one undertaking to justify his violation of the law in defense of his property than he would be required to make in defense of his life.

The case of State v. Ward, 170 Iowa, 185, 152 N.W. 501, Ann. Cas. 1917B, 978, appears to be directly in point. In that state there was a statute that made it unlawful for any person to kill any deer, elk, or goat. The defendant was a farmer, and in his neighborhood was a band of deer, which for a long time past had been in the habit of appearing upon his premises and eating up and trampling down much of his grain. On many occasions he had driven them away, but, after they had done much damage, on one occasion, he shot and killed one of them. He was arrested and charged with violating the statute, and convicted in the lower court, but upon appeal, to the Supreme Court of the state of Iowa the judgment was reversed. The court put the question before it as follows:

'The one question in the case is whether a person who kills a deer, elk, or goat is necessarily guilty of violating the statute regardless of the reasons for such killing. To put it in another way: Is it open to the defendant to justify an admitted killing by showing a reasonable necessity in defense of person or property?'

The court, among other things, then says:

'By way of analogy, we may note that the plea of reasonable self-defense may always be interposed in justification of the killing of a human being. We see no fair reason for holding that the same plea may not be interposed in justification of the killing of a goat or a deer. The right of defense of person and property is a constitutional right, * * * and is recognized in the construction of all statutes. If in this case it was reasonably necessary for the defendant to kill the deer in question in order to prevent substantial injury to his property, such fact, we have no doubt, would afford justification for the killing.'

This whole question is elaborately and learnedly discussed in the case of Aldrich v. Wright, 53 N.H. 398, 16 Am. Rep. 339. In that state there was a law for the protection of, and against, the killing of mink. Wright had some geese which these mink were in the habit of chasing and threatening to kill. On one occasion, when the mink were in the act of chasing the geese, Wright, for the purpose of protecting the latter, shot and killed the mink. He was criminally charged with violation of the statute. After an elaborate discussion of the principles involved, the court concludes that the defendant had a right to justify his act, and that his testimony showed he was justified in the killing.

The purpose of these laws is the protection of the game from destruction. The act must be reasonably construed to accomplish the...

To continue reading

Request your trial
26 cases
  • State v. Stambaugh
    • United States
    • Washington Court of Appeals
    • July 25, 2007
    ...his crops and livestock over a period of time and his repeated past efforts to drive them from his premises had failed to keep them away. Id. The Supreme Court agreed. Based on the constitutional right to defend one's property, id. at 374, the Court held that Burk "had a constitutional righ......
  • State v. Stambaugh, No. 34900-1-II (Wash. App. 7/25/2007)
    • United States
    • Washington Court of Appeals
    • July 25, 2007
    ...1. Development of the Necessity Defense In State v. Burk, the State charged the defendant with unlawfully killing protected elk. 114 Wash. 370, 195 P. 16 (1921). Burk argued that the trial court erred in preventing him from arguing to the jury that he was legally entitled to kill the elk be......
  • State v. Hull
    • United States
    • Washington Court of Appeals
    • December 18, 2014
    ...is not more than is necessary. Clerk's Papers (CP) at 61, 62. As support for its proposed instruction, Mr. Hull cited State v. Burk, 114 Wash. 370, 195 P. 16 (1921). The trial court refused to give the instruction. It accepted the State's argument that RCW 9A. 16.020 identifies only circums......
  • State v. Hull, 31078-7-III
    • United States
    • Washington Court of Appeals
    • December 18, 2014
    ...is not more than is necessary. Clerk's Papers (CP) at 61, 62. As support for its proposed instruction, Mr. Hull cited State v. Burk, 114 Wash. 370, 195 P. 16 (1921).Page 10 The trial court refused to give the instruction. It accepted the State's argument that RCW 9A.16.020 identifies only c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT