State v. Fisher

• Citation: 53 Or. 38,98 P. 713
• Parties: STATE v. FISHER.
• Decision Date: 29 December 1908
• Court: Supreme Court of Oregon

98 P. 713

53 Or. 38

STATE v. FISHER.

Supreme Court of Oregon

December 29, 1908

Appeal from Circuit Court, Linn County; George H. Burnett, Judge.

George W. Fisher was convicted of violating the game law, and he appeals. Reversed. New trial ordered.

Defendant was arrested, tried, and convicted in a justice's court for Linn county upon a charge of having violated the game laws of this state by having in his possession on December 12, 1907, in that county, six deer hams, when it was unlawful to take or kill such deer. He thereupon appealed to the circuit court, and the cause came on for trial on March 13 1908. The state, having presented its case, rested, when the defendant, as witness in his own behalf, admitted that, on the day charged, he had in his possession eight deer hams claiming to own the same, and offered to further testify that he killed the deer, of which the hams were a part, within Linn county, during the last week in October, 1907, and that the hams had been kept fresh by the application of salt saltpeter, and other preservatives, but the evidence was rejected by the court upon objection by the state that the proffered testimony was irrelevant and immaterial. Defendant excepted, and rested his case. After argument of counsel, the court instructed the jury that if they found that defendant had in his possession, at the time charged, any deer hams being parts of any deer, they must return a verdict of guilty against defendant without regard to the time when, if at all, defendant killed the deer of which such hams formed a part; to which instruction defendant excepted. A verdict having been rendered against him, the court sentenced him to pay a fine, and from this judgment he appeals, assigning as errors the rejection of his proffered testimony and the giving of such instruction.

J.K. Weatherford, for appellant.

John H. McNary and Gale S. Hill, for the State.

SLATER C. (after stating the facts as above).

The defendant is charged with a violation of the provisions of section 2010, B. & C. Comp., as amended by the act of February 25, 1907 (Laws 1907, p. 342), which so far as material, reads as follows: "It shall be unlawful at any time between the first day of November of each year and the fifteenth day of July of the following year, to hunt, pursue, take, kill, injure, destroy, or have in possession any buck deer. It shall be unlawful at any time between the first day of November of each year and the first day of September of the following year to hunt, pursue, take, kill, injure, destroy, or have in possession, any female deer. *** It shall be unlawful within the state of Oregon, at any time, to sell, or offer for sale, barter or exchange, any deer whatever. Any person *** having in possession any deer, or carcass, or part of a deer during the season when it is unlawful to take or kill such deer shall be guilty of a misdemeanor."

It is contended by the state that the latter part of this amendatory enactment is intended to prohibit any person from having possession of a carcass or part of a deer at any time during the season when it is unlawful to kill or take deer in this state regardless of the time when such deer was killed, and that proof of such possession is conclusive of the guilt of defendant. The argument is that the language of the statute is clear unambiguous, and certain, and that there is no room for construction. The lower court must have taken this view and so construed the act. On the part of the defendant the contention is made that the words "carcass, or part of a deer," used in the act, were intended, and should be construed, to mean "a carcass or part of a deer taken or killed during the season when it is unlawful to take or kill such deer." If this construction of the act is correct, it is clear that the trial court erred in rejecting the defendant's proffered testimony and instructing the jury as it did. This result is reached by invoking the well-recognized rule of statutory construction that a penal statute, should be construed to carry out the obvious intention of the Legislature, and be confined to that. Every case must come, not only within its letter, but within its spirit and purpose, and should be given a rational construction. Sutherland, Stat.Const. § 354.

The general purpose and manifest object of the act of 1901, of which section 2010, B. & C. Comp., is a part, is to protect and preserve from excessive slaughter the wild game of this state, by prohibiting the killing of any within a certain period of time, called a "close season," and limiting the number that may be taken or killed, and the purpose for which it may be taken, during the open season. What the law aims at is not the mere fact of possession of game, lawfully obtained, but to prevent its being unlawfully taken or killed, and its unlawful disposition when lawfully obtained. When the state of the law is apparently such that it is lawful for a person to kill a deer on October 31st for his own use, it ought not to be held to be a crime to be found thereafter in possession of all, or part of, the carcass, of such deer, with no other object or intent than to use it for food, unless it is certain that the law has made it so by a clear and manifest declaration. State v McGuire, 24 Or. 366, 33 P. 666, 21 L.R.A. 478. It is plain that not only is the killing of deer, within the close season, prohibited and made punishable, but also having possession of the meat of a deer which was killed during the close season, although the person having possession, may not have done the killing, because the act of possession would tend to aid in the concealment of the offense of unlawfully killing game during the close season. To that...