State v. Niles

• Decision Date: 29 January 1906
• Citation: 62 A. 795,78 Vt. 266
• Court: Vermont Supreme Court
• Parties: STATE v. NILES.

62 A. 795

78 Vt. 266

STATE

v. NILES.

Supreme Court of Vermont. Franklin.

Jan. 29, 1906.

Exceptions from Franklin County Court.

Calvin B. Niles was informed against for having in his possession wild deer in the closed season. There was a judgment overruling a demurrer to the indictment, and respondent excepted. Judgment affirmed.

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

Lee S. Tillotson, for plaintiff. Warren R. Austin, State's Atty., for the State.

START, J. The respondent demurs to the information wherein he is charged with the offense of having in his possession two wild deer during the closed season for hunting, and with taking wild deer, contrary to the provisions of No. 94, p. 74, of the Acts of 1896, as amended by No. 108, p. 84, of the Acts of 1898, and insists that by No. 128, p. 167, of the Acts of 1904, nonresidents of this state are exempt from the penalties provided for by the act of 1896, and that he is thereby discriminated against in contravention of his rights under the fourteenth amendment to the Constitution of the United States. He claims that by No. 128, p. 167, of the Acts of 1904, a resident of this state is unlawfully discriminated against, in that he is by the act of 1896, as amended by No. 108, p. 84, of the Acts of 1898, prohibited from killing or having in his possession a deer during the closed season for hunting; that for killing or having in his possession, during the open season, more than one deer, he subjects himself to a fine of $100; that he is prohibited from transporting a deer during the open season without its being open to view, tagged, and plainly labeled with the name of the owner thereof, and accompanied by him; that he is prohibited, during the open season, from hunting, destroying, or capturing deer with a dog or dog kind, by the aid or use of a jack or artificial light, by the method known as "crusting," while the deer are yarded, or by the use or assistance of any snare, trap, or salt lick; and that the possession of a deer, except in the open season, is presumptive evidence that he is guilty of a violation of the provisions of section 1 of the act of 1896; while a nonresident is, by No. 128, p. 167, of the Acts of 1904, exempt from all of these prohibitions and requirements. These claims, as a whole, are not sound.

Section 1 of the act of 1896 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 that the possession of a deer or any part thereof, except in the open season, shall be presumptive evidence that the person having it in his possession is guilty of a violation of the provisions of the section. The act of 1904 only repeals such acts and parts of acts as are inconsistent therewith. The act of 1896, as amended by the act of 1898, is still in force and binding upon a nonresident, as well as a resident, of this state, except as is otherwise provided by the act of 1904. There is nothing in the act of 1904 that is inconsistent with the act of 1896, except the provision relating to the transporting of deer, the penalty for killing more than one deer, and the provision requiring a nonresident to procure a license. That part of the act of 1896, as amended by the act of 1898, which prohibits the killing or possession of a deer during the closed season for hunting, or, at any time, the hunting of deer with a dog or dog kind, by the aid or use of a jack or artificial light, by methods known as "crusting," while deer are yarded, or by the use or assistance of any snare, trap, or salt lick, remains in force; and for a violation of any of these provisions residents and nonresidents are alike punishable under the act of 1896. A nonresident's license to hunt in this state, except as is otherwise provided by the act of 1904, must be taken to be a license to do so in conformity to the general game laws of this state, and a nonresident who has in his possession, during the closed season, a deer, subjects himself to the penalty provided by the act of 1896. A nonresident, being punishable under the act of 1896 for having a deer in his possession during the closed season, is not exempt from the presumption therein provided for, which arises from such possession; and in prosecutions against him under the act of 1896 for having such possession he must overcome this presumption to the same extent that a resident is required to in a like case. The act of 1904 does not impose the same penalty on a nonresident for killing more than one deer during the open season that is by the act of 1896 imposed upon a resident for doing the same act; for that a nonresident may be fined not less than $25 nor more than $100, while a resident must pay a fine of $100. Also, a nonresident may transport the carcass of one deer by having a coupon, furnished by the fish and game commissioners, attached thereto, while a resident to do so must have the carcass open to view, tagged, and plainly labeled with the name of the owner thereof, and accompanied by him. These regulations for admitting nonresidents, on payment of a license fee, to this state for the purpose of hunting, which differ from those regulating hunting by residents of this state, who are not required to procure a license, are within...