State v. Meinken

• Decision Date: 27 October 1952
• Docket Number: No. A--23,A--23
• Citation: 91 A.2d 721,10 N.J. 348
• Parties: STATE v. MEINKEN.
• Court: New Jersey Supreme Court

Page 348

10 N.J. 348

91 A.2d 721

STATE v. MEINKEN.

No. A--23.

Supreme Court of New Jersey.

Argued Oct. 6, 1952.

Decided Oct. 27, 1952.

Robert Carey, Jr., Deputy Atty. Gen., and Theodore D. Parsons, Atty. Gen., for appellant.

Gabriel Kirtzenbaum, New Brunswick, for respondent. Perry J. Martin, New Brunswick, on the brief.

The opinion of the court was delivered by

VANDERBILT, C.J.

On December 16, 1950, the defendant was arrested and charged with violating R.S. 23:4--44, as amended, N.J.S.A., by possessing an illegal missile while hunting deer, and with violating R.S. 23:4--24.1, N.J.S.A., by having a loaded shotgun in his car. At his trial before the Municipal Court of South Brunswick Township the defendant pleaded guilty to both offenses and was accordingly convicted and fined $100 and $5 costs for the violation of R.S. 23:4--44, N.J.S.A., and $20 and $5 costs for the violation of R.S. 23:4--24.1, N.J.S.A. The defendant paid both fines. Subsequently, however, he took an appeal to the Middlesex County Court from his conviction for possessing an illegal missile in violation of R.S. 23:4--44, N.J.S.A. Pursuant to Rule 2:11(h)(1) a trial De novo was had, the defendant found guilty and a fine of $100 plus $5 costs imposed. From this judgment of conviction the defendant appealed to the Appellate Division of the Superior Court which reversed the County Court. We then granted the State's petition for certification to review the decision of the Appellate Division. 9 N.J. 611, 89 A.2d 306.

The facts are not in dispute, being set forth in the County Court's statement in lieu of record apparently filed in accordance with Rule 1:2--22. On December 16, 1950, which was during the hunting season for deer, the defendant left his home in New Brunswick by car for the sole purpose of hunting deer. Shortly before noon the defendant was stopped by a state game warden on New Road in South Brunswick Township. Beside him on the front seat of his car the defendant had a .12-gauge shotgun loaded with two sheels containing buckshot and in his trousers pocket he had a .12-gauge shell loaded with one-ounce solid ball. New Road at the point where the defendant was stopped is an unimproved dirt road maintained by the township. On either side of the road are undeveloped woods and fields devoid of buildings and structures. The area is one where wild deer are customarily found and hunted, and at the time when the defendant was apprehended others were engaged in hunting deer in the immediate vicinity.

The pertinent parts of R.S. 23:4--44, as amended, N.J.S.A., which the defendant was charged with violating provided that:

'Unless otherwise prescribed by the State Fish and Game Code, no person engaged in hunting for wild deer shall use or carry a rifle of any kind or description, or any firearm or shotgun of a smaller caliber than twelve gauge, or load such firearm or shotgun with a bullet or other missile larger than that commonly known as buckshot, or have in possession in the woods or fields during the open season for killing deer any missile except buckshot or have any missile larger than number four shot in possession in the woods or fields at any time other than during the open season for killing deer; * * *.'

The only question presented to us on this appeal is whether the defendant at the time he was apprehended was 'engaged in hunting * * * in the woods or fields,' it being conceded that the shell loaded with a one-ounce solid ball which the defendant had in his possession is a missile of the type forbidden by the statute.

In resolving this question the State urges that we construe the words of the statute liberally so as to promote the public policy of the State in conserving its natural resources and in protecting the safety of its people. In 3 Sutherland Statutory Construction (3rd ed.1943), § 7214, p. 445, it is stated:

'Of great public importance are laws providing for the conservation of natural resources and thus they are given a liberal construction. Statutes of this sort are fish and game laws, and legislation regulating waste of mineral resources.'

But the defendant points out that the statute before us is penal in nature and urges that we apply the well recognized rule that penal statutes are to be strictly construed. Mayor, etc., of Alpine Borough v. Brewster, 7 N.J. 42, 50--51, 80 A.2d 297 (1951); State v. Labato, 7 N.J. 137, 148, 80 A.2d 617 (1951). We note in this regard the case of State v. Zellmer, 202 Iowa 638, 210 N.W. 774, 775 (Iowa, 1926), wherein the court said:

'The section is a part of the fish and game laws of the state, all of which, so far as In pari materia, should be considered in arriving at the intent of the Legislature in its enactment. The section also is penal, and its provision should be strictly construed.'

There is no real conflict between these two well recognized rules of statutory construction, for all penal statutes are enacted and enforced in the public interest. Where a law or group of laws are both remedial and penal, as the fish and game laws clearly are, those provisions which are remedial are to be liberally construed and those that are penal are to be strictly construed, Maellaro v. Madison Finance Co. of Jersey City,130 N.J.L. 140, 144, 31 A.2d 485 (Sup.Ct.1943), affirmed, 131 N.J.L. 160, 35 A.2d 714 (E. & A.1944). The rule of strict construction applicable to the penal provisions of a statute, however, does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed or prevent a court from giving effect to the terms of the statute in accordance with their fair and natural acceptation. While a penal statute is not to be extended by implication or intendment, its clear implication and intendment is not to be denied, State v. Brenner, 132 N.J.L. 607, 611, 41 A.2d 532 (E. & A.1945); Mayor, etc., of Alpine Borough v Brewster, supra, 7 N.J. 42, 50--51, 80 A.2d 297 (1951), nor is a construction of a penal statute that will aid in its evasion to be favored, State v. Hand, 71 N.J.L. 137, 141, 58 A. 641 (Sup.Ct.1904). In Stricker v. Pennsylvania R.R. Co., 60 N.J.L. 230, 235, 37 A. 776, 778 (E. 3 A.1897), it was stated:

'It must be admitted that this is a penal statute, and that, in general, such statutes must be construed strictly, but it is equally well settled that this rule...