State v. McGuire

• Decision Date: 10 July 1893
• Citation: 24 Or. 366,33 P. 666
• Parties: STATE v. McGUIRE. SAME v. BARNES. SAME v. COVACH.
• Court: Oregon Supreme Court

33 P. 666

24 Or. 366

STATE v. McGUIRE. SAME v. BARNES. SAME v. COVACH.

Supreme Court of Oregon

July 10, 1893

Appeal from circuit court, Multnomah county; M.G. Munly, Judge.

William M. McGuire, F.C. Barnes, and G. Covach were convicted of violating the fish laws, and appeal. Reversed.

C.A. Dolph, for appellants.

W.T Hunn, Dist.Atty., and Geo. E. Chamberlain, for the State.

LORD C.J.

These are criminal actions brought by the state game warden in the justice's court for the South Portland precinct, wherein the defendants, after trial, were severally convicted and fined. Thereafter, each of the defendants prosecuted his appeal to the circuit court, where the cases were tried anew with like results, and from the judgments therein rendered the defendants have appealed to this court. The questions involved in each case being substantially the same, they were, as a matter of convenience, tried together in the circuit court, and the same course has been adopted in the argument here.

In State v. McGuire the complaint charges that the defendant "on the 6th day of March, A.D.1893, in the county of Multnomah, and state of Oregon, did willfully and unlawfully have in his possession, then and there being the close season on the Columbia river, certain fish, to wit steelhead salmon, caught in the said Columbia river contrary to the statutes in such cases provided," etc. At the trial it appeared from the testimony for the state that the defendant, at the time stated, which was shown to be the close season on the Columbia river, had in his possession a quantity of steelhead salmon, belonging to the fish dealers in Portland, which had been caught in the Columbia river. The testimony for the defendant showed that he was the manager of a cold-storage warehouse, and that he held the fish in question as custodian for his patrons; and he offered to show, against the objection of the state, that the fish had been caught in the open season on the Columbia river, and that the same belonged to the fish dealers in the city, who had stored them with him, and with whom he had agreed to preserve them in cold storage, and deliver the same upon demand. The trial court sustained the objection to the introduction of this testimony upon the ground that the same was immaterial and incompetent, to which ruling the defendant excepted. In State v. Barnes the complaint is the same, except that it charges that the defendant did "willfully and unlawfully have in his possession, and offer for sale," etc. The testimony for the state showed that at the time mentioned in the complaint, which was the close season on the Columbia river, the defendant was the proprietor of a fish market in the city of Portland, and had exposed for sale steelhead salmon which had been caught in the Columbia river. The defendant offered to show that such fish had been caught in the open season on said river, and had been preserved in cold storage from that time until they were offered for sale. This evidence was excluded on the same ground, and an exception reserved. In State v. Covach the complaint is the same as in State v. Barnes aforesaid. The testimony for the prosecution showed that the defendant was the proprietor of a fish market, and at the time stated, which was shown to be the close season on the Columbia river, had in his possession, and exposed for sale, steelhead salmon which had been caught in the Umpqua river. The defendant offered to prove that the fish were caught during the open season on the river, etc., but the evidence was excluded, and an exception saved.

The instruction of the court to the jury, to which an exception was reserved, is the same in each case, and is as follows: "If you find, beyond a reasonable doubt, that the defendants, or either of them, had steelhead salmon, Chinook salmon, silver salmon, or blueback, in their possession, or offered the same for sale, during the close season on the Columbia river, no matter where the same were caught or taken, or when they were caught or taken, then you must find the defendants guilty."

The complaints are based on the act of 1891, entitled "An act to protect salmon in the state of Oregon," etc., and the act of 1893, amendatory thereof. Section 1 of the act of 1891 provides: "It shall not be lawful to take or fish for salmon in the Columbia river or its tributaries, by any means whatever, in any year hereafter between the first day of March and the tenth day of April, or between the tenth day of August and the tenth day of September, in any of the rivers and bays of the state, or the Columbia river, during the weekly close time,--that is to say, between the hours of six o'clock P.M. on each and every Saturday and six o'clock in the afternoon of the following Sunday." Sess.Laws 1891, p. 33. By the amendatory act of 1893 sections 3 and 6 of the act of 1891 are amended so as to read as follows: Sec. 3. "It shall not be lawful for any person or persons to take or fish for salmon in the waters of the Nehalem, Tillamook, Nestucca, Salmon, Siletz, Yaquina, Alsea, Siuslaw, Umpqua, Coos Bay, Coquille, Sixes, Elk, Chetoo, Rogue river, Windchuck, or any of their tributaries, or in any other streams or bays in this state, except the Columbia river and its tributaries, from the first day of November until the fifteenth day of December, or between the fifteenth day of April and the first day of June." Sec. 6. "It shall be unlawful for any person or persons to receive or have in his possession, or offer for sale or transportation, or to transport during the close seasons named in this act, any of the following varieties or kinds of fish, which may be caught in any of these streams as aforesaid, viz.: Chinook salmon, silver salmon, steelhead or blueback, and any person or persons violating any of the above sections shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum of not less than ten dollars nor more than two hundred and fifty dollars." Sess.Laws 1893, p. 145. The object of the actions is to obtain a construction of the act of the legislature of 1891 as amended by the act of 1893. Under the statutes there are several close seasons, but none of them are of general application throughout the state, except the weekly close season. There are times during the year when it is an open season on the Nehalem, Tillamook, etc., and lawful to catch fish in their waters, and it is a close season on the Columbia, and unlawful to catch fish in its waters. The particular question to be determined is, does the statute prohibit a person from having in his possession, or offering for sale, during the close seasons named in the act, any fish of the varieties mentioned, which were caught in any of the rivers enumerated during their open seasons? The construction which the trial court gave to the statute by its rulings on the evidence and its instruction to the jury was that it is unlawful for a person to have in his possession, or offer for sale, during the close season on the Columbia, fish of the kind named in the act, "no matter where they were caught or taken, or when they were caught or taken." In this view it was no defense that such fish were caught in the Umpqua or Columbia rivers during the open seasons specified in the statute, when it was lawful to catch them, if the defendants had such fish in their possession, or offered them for sale, during the close season on the Columbia. Hence, as in the cases of the defendants McGuire and Barnes, fish caught during the open season on the Columbia, when it is lawful to catch them, and placed in cold storage for their preservation, or, as to that matter, put up in salt or cans, cannot lawfully remain in the possession of the owner, or be offered for sale, during the close season on that river, or, as in the case of the defendant Covach, it would be unlawful for a party to have in his possession, or offer for sale, fish caught during the open season on the Umpqua, when it is lawful to catch them, if it happens to be the close season on the Columbia. Under this construction of the statute a party who has in his possession such fish, or who offers them for sale, although lawfully caught, whether in or out of the state, and his private property, is liable to punishment, and his property rendered worthless or destroyed. Nor is this all. Salmon caught on Friday night or Saturday morning, which may come into the cannery or market at 6 o'clock Saturday evening,--the commencement of the close season each week,--must be immediately destroyed, or the party having them in his possession, or offering the same for sale, during such weekly close season, will be exposed to prosecution and punishment. A statute which leads to such consequences ought not only to be clear, but mandatory, and the act done under it not only within the letter, but within the spirit, of the law, to authorize its enforcement. This construction, however, counsel for the state insist, must be given to the statute, to make it effective, and carry out the purpose of the law. Their contention is that the object of the statute is to protect such fish during the close season in order that they may have an opportunity to propagate their species, and be preserved from extermination, and that, if any other construction is adopted, fish could be caught in the open season in such numbers as to supply the market during the close season by putting them in cold storage until wanted, and by so doing the stock of fish would be seriously impaired or exhausted, and but a few or none would be left to propagate their kind, and, finally, that such a construction is necessary to prevent evasion of the statute, and make the proof of its violation easy and accessible. Hence they argue that the fact of the fish...