State v. Meehan

• Decision Date: 23 October 1912
• Citation: 84 A. 862,86 Vt. 246
• Parties: STATE v. MEEHAN.
• Court: Vermont Supreme Court

84 A. 862

86 Vt. 246

STATE

v. MEEHAN.

Supreme Court of Vermont. Addison.

Oct. 23, 1912.

Exceptions from Addison County Court; Fred M. Butler, Judge.

Frank D. Meehan was convicted of having parts of wild deer not killed during the open season in his possession during closed season, and he brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

F. W. Tuttle, State's Atty., of Vergennes, for the State.

J. B. Donoway and Charles I. Button, both of Middlebury, for respondent.

MUNSON, J. The respondent is charged with having parts of three wild deer not killed during the open season in his possession during the closed season. P. S. 5320, provides that "no person, except in the open season, * * * shall pursue, take or kill a wild deer, or have in his possession a wild deer, or part thereof, so taken or killed," and provides, further, that "the possession of a deer or a part thereof, except in the open season, shall be presumptive evidence that the person having the same in his possession is guilty of a violation of the provisions of this section." The open season for deer in 1910 was, by proclamation of the Governor, the first week in November.

The court instructed the jury, in substance, that if the respondent had the deer hides in his possession in January, 1911, they might find, without other evidence, that they were in his possession in violation of law, as charged in the information; that the statute made the possession of the hides during the closed season presumptive evidence that the possessor had them in violation of law, and placed upon him the burden of making some explanation. The respondent excepted to this statement being made to the jury without calling their attention to the fact that the deer must be one that was killed during the closed season. The court then gave a further instruction, in the course of which it said that the first question was whether the respondent had some deer hides in his possession in January, and read from the statute the clause creating the presumption and explained it by saying: "That is, guilty of having in his possession hides (of deer) which were taken and killed in violation of law." The respondent excepted to the reading of this clause, and stating that, if he had the hides in his possession in January, he was guilty, without saying that, even if he did have them in his possession in January, it was for the jury to say whether the deer were killed in the open season. In considering the adequacy of these instructions in the respect complained of, regard must be had to other parts of the charge. The previous instructions of the court had been such that in speaking of a possession in violation of law the court was covering all that the respondent was insisting upon. Early in the charge, and after a full presentation of the statute, the court referred to certain testimony as tending to show that the hides were those of deer "which were taken and killed contrary to law; that is, they were taken and killed during the closed season." And in closing its review of the state's testimony the court said: "Now all of that evidence tends to show that they were taken and killed during the closed season." The evidence was then submitted for the consideration of the jury as bearing upon the question whether the respondent had the hides in his possession, and, if he did have them in his possession, whether the deer were...