State v. Gilletto

• Decision Date: 04 April 1923
• Citation: 98 Conn. 702,120 A. 567
• Court: Connecticut Supreme Court
• Parties: STATE v. GILLETTO.

120 A. 567

98 Conn. 702

STATE v. GILLETTO.

Supreme Court of Errors of Connecticut.

April 4, 1923

Appeal from Criminal Court of Common Pleas, New Haven County; John R. Booth, Judge.

Antonio Gilletto was found guilty of shooting on Sunday, and he appeals. No error.

The accused was prosecuted for violation of section 3173, General Statutes 1918, reading as follows:

" Sunday Hunting Prohibited. --No person shall on Sunday, shoot or hunt; and the possession in the open air on Sunday, of any implement for hunting shall be deemed prima facie evidence of hunting in violation of the provisions of this section. Nothing herein shall apply to section 794."

The trial court found that the accused and his father were employed by one Hendricks, the owner of a farm in Southbury through which ran a brook emptying into a small bay or cove in which said Hendricks claimed exclusive fishing rights, and which he had stocked with trout, and for the protection of which it was the duty of the accused and his father to patrol this brook and conserve the fish therein by warning off strangers seeking to fish in the brook or cove. It was also their duty to protect the corn and other crops upon the farm by shooting any crows or woodchucks seen to be destroying crops.

On Sunday, May 28, 1922, the accused, with his father, was patrolling the brook for the purposes for which he had been hired by Mr. Hendricks, and had with him the gun furnished by Mr. Hendricks. It was the intention of the accused, while so patrolling the brook on Sunday, May 28th, to shoot any snakes or frogs that he saw in or near the brook, and to shoot any woodchucks or crows that he saw destroying any corn or other crops of Mr. Hendricks, thereby protecting the crops, and the accused did not have any other purpose or intention in having a gun with him on that day.

In finding the accused guilty, the court reached the following conclusions of law:

(1) The carrying of a gun on Sunday by a person upon his own land, or by an employee upon the land of his employer, for the purposes of protecting the crops upon his own or his employer's land and the trout in his own or in his employer's brook, or with the intention of shooting crows or woodchucks that were destroying his own or his employer's crops, or with the intention of shooting any snakes, frogs, or vermin upon his own or upon his employer's land, was " hunting" within the meaning of section 3173 of the General Statutes, Revision of 1918, and in violation thereof.

(2) That it is a violation of section 3173 of the General Statutes, Revision of 1918, for a person upon his own property on a Sunday to have with him a gun with the intention of shooting, or in shooting said gun at any reptiles, birds, quadrupeds, or vermin that were damaging or liable to damage the fish, crops, fowls, or stock of the owner of the land.

Defendant on appeal assigns error in the above conclusions of the trial court, principally upon the grounds that in the section of the statute underlying the prosecution the force of the words " shoot and hunt" is limited to shooting or hunting game birds or quadrupeds, and has no application to a person shooting snakes, frogs, vermin, crows, or woodchucks in protection of an employer's crops or property; also that said section does not apply to a person hunting or shooting upon his own land, or to an employee hunting or shooting upon his employer's land, with the authority and consent of the employer.

An incidental and preliminary question raised was whether the section was a " game law" looking to the protection of game, or a " Sunday law" to enforce proper observance of the day.

Robert C. Stoddard, of New Haven, for appellant.

Edwin S. Pickett, Pros. Atty., of New Haven, for the State.

KEELER, J. (after stating the facts as above).

In determining the question as to whether the provision under consideration is of the nature of a " game law" or a " Sunday law," the original form of its enactment, its changes by amendment, and its place in several revisions of the statutes will throw considerable light, and also have value in the construction of the section itself.

What is now G. S. 1918, § 3173, and classified under the title " Fisheries and Game" and the chapter on " Birds," first made its appearance upon the statute book in P. A. 1877, c. 116, § 7. The act is entitled " an act concerning the preservation of game," and section 7 reads as follows:

" There shall be no shooting or hunting, or having in possession in the open air the implements for shooting, on the first day of the week called Sunday, and any persons violating the provisions of this section," etc.

The law of 1877, of which this section forms a part, was amended in 1881 (P. A. 1881, p. 29), and the amendment was entitled " An act amending the game laws," and designated as section 8.

In the revision of 1888, this section 7 of Act 1877 appears as section 2533 changed somewhat in wording, but not in purport and appears in the title " Preservation of Game." In 1901 a complete codification of the game laws was made (P. A. 1901, c. 140), in which this section is put in article 2, headed " Birds," and reads as follows:

" No person shall on Sunday shoot or hunt or have in possession in the open air the implements for shooting." Section 23.

In these exact words the provision was carried into the revision of 1902 under the title " Fisheries and Game," and the chapter headed " Birds," and as section 3132. In 1907 (P. A. 1907, c. 162) section 3132 was amended and brought to the form in which it appears in the revision of 1918 as section 3173, with only the change of the last word from " act" to " section," and is classified as above set forth.

The original section in the act of 1877, except for its title, might perhaps have been classified as a Sunday law, but the title states the object of the enactment to be the preservation of game, and, in all of the subsequent amendments and revisions, it is associated in classification with what is popularly called the game law. The maxim losci tur a sociis need not be pressed too far as bearing upon the situation, but it is a valuable aid in construction. Then again the constant association of the provision, considered with other provisions unquestionably relating to game, and to game only, taken in connection with the titles under which it has been included, are very persuasive, in the absence of anything in the body of the law to demand a different construction. Middletown v. N. Y., N.H. & H. R. R. Co., 62 Conn. 492, 496, 27 A. 119; U.S. v. Fisher, 2 Cranch, 358, 386, 2 L.Ed. 304; U.S. v. Palmer, 3 Wheat. 610, 631, 4 L.Ed. 471; Field v. Gooding, 106 Mass. 310, 313; People v. Davenport, 91 N.Y. 574, 591; People v. O'Brien, 111 N.Y. 1, 59, 18 N.E. 692, 2 L.R.A. 255, 7 Am.St.Rep. 684; Deddrick v. Wood, 15 Pa. 9, 12.

It does not appear, however, that we are forced to rely upon the light thrown upon this provision by its title, nor by the provisions with which it is associated in enactment, amendment, and revision. An examination of the text of the section, taken in connection with the mischief to be obviated, and the Sunday law as it existed in 1877, seems to lead to very clear inferences in construction. The Sunday law existing in 1877 is found in G. S. Rev. 1875, p. 521, § 57, and had long existed with substantially the same wording. Its well-known prohibitions included secular business or labor, except acts of necessity or mercy and specifically any sport or recreation. The provisions of this law were ample to conserve the peace and quiet of the day of rest, and there existed in that regard no need of any further enactment specifically directed toward hunting and shooting. Shooting, of course, makes a noise which might impair the Sabbath quietude of the neighborhood, but hunting apart from shooting is not a practice likely to have such an effect. Any noise made in hunting adequate to conflict with the restful calm of the neighborhood, would affect disastrously the chance of securing any game in the immediate vicinity.

The words of the original statute of 1877 are " shooting and hunting" ; the present act reads " shoot or hunt." " To hunt" is the inclusive or generic term; " to shoot" a specific and subordinate one included in the wider designation of hunting. A fair interpretation of this part of the section would seem to be as if it read " hunting by shooting or otherwise." In the part of the section relating to the possession of implements, mention is made of implements of " shooting" only down to and including the revision of 1902. In 1907 these words are changed to " implements for hunting," in which wording the section appears in the present law. It was the evident legislative intent to have the existing law exact and comprehensive, and so, while the ordinary implement of hunting is a gun, the implement of shooting, still there were other accessories of hunting of value as evidence of intent.

From the considerations above recited may be deduced a professional and legislative construction of this provision as a game law, which we think is controlling in connection with the phrasing of the enactment itself. We therefore conclude that the defendant is not in the information charged with violating a Sunday law, nor on the facts found by the court is he guilty of such violation.

We pass to the principal controversy in the case as to what acts are covered by, and violative of, the law as quoted in the statement of facts, and of which the possession by any defendant of implements of hunting is prima facie evidence. The defendant claims that he can only be held guilty if he was in pursuit of game of the character protected by law from destruction, either entirely and absolutely, or of...