State v. Poole

• Decision Date: 29 July 1904
• Citation: 100 N.W. 647,93 Minn. 148
• Parties: STATE v. POOLE. SAME v. KERR.
• Court: Minnesota Supreme Court

93 Minn. 148

100 N.W. 647

STATE

v.POOLE.

SAME

v.KERR.

Supreme Court of Minnesota.

July 29, 1904.

Appeal from District Court, Jackson County; James H. Quinn, Judge.

Robert Poole and William Kerr were convicted of having possession of wild ducks, with intent to sell them, contrary to the provisions of Laws 1903, p. 606, c. 336, § 45, and appeal. Affirmed as to defendant Poole, and reversed as to defendant Kerr.

Syllabus by the Court

The defendants were convicted of the offense of having in their possession wild ducks, with intent to sell them, as defined and punished by section 45, c. 336, p. 606, Laws 1903. Held:

1. The statute is not unconstitutional for the alleged reason that it provides for the imposition of excessive fines and the infliction of cruel and unusual punishments.

2. The court did not err by its refusal to instruct the jury to return a verdict of not guilty as to the defendant P., for the evidence was sufficient to justify his conviction. It was otherwise as to the defendant K.

3. The court did not err in its rulings as to the admission of evidence, nor in its instructions to the jury, except as to the defendant K. H. G. Latourell and Knox, Faber & Knox, for appellants.

W. J. Donahower, Atty. Gen., C. W. Somerby, Asst. Atty. Gen., and E. T. Smith, Co. Atty., for the State.

START, C. J.

The defendants were jointly indicted by the grand jury of the county of Jackson for having on September 28, 1903, in their possession 2,000 wild ducks, with intent to sell them. They were tried together upon the indictment in the district court of the county of Jackson, and each was found guilty by the jury of having in his possession 2,000 ducks, with intent to sell the same. Thereupon it was adjudged in the case of defendant Poole that he pay a fine of $20,000, and that he be imprisoned in the county jail until the fine is paid, not exceeding 200 days. The judgment in the case of the defendant Kerr imposed a like fine, with imprisonment in the county jail until the fine is paid, not exceeding 300 days. Each of the defendants appealed from the judgment against him.

1. The statute for a violation of which the defendants were convicted is section 45 of chapter 336, p. 606, Laws 1903, which, so far as here material, reads as follows: ‘No person shall * * * have in possession with intent to sell * * * at any time any * * * wild duck of any variety. Whoever shall offend against and of the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not less than ten dollars, or more than twenty-five dollars, or by imprisonment in the county jail for not less than ten days nor more than thirty days for each and every bird so * * * had in possession with intent to sell. * * *’ The defendants contend that, if this statute be valid, then, under the form of the indictment in this case, only a single misdemeanor is charged, and the maximum penalty cannot exceed a fine of $25 or imprisonment for 30 days; and, further, that if the state desired or intended to avail itself of the penalty for each bird charged to have been unlawfully in the defendants' possession, the indictment should have contained a separate count for each bird. It is obvious that the indictment charges one act; that is, the possession by the defendants, at a particular time and place, of 2,000 wild ducks, with intent to sell them. It necessarily follows that the indictment charges only one offense, and that the act constituting the offense cannot be subdivided, and made the basis for 2,000 indictments. The punishment, however, for a single act is graded by the statute according to the number of birds unlawfully possessed; hence the fine imposed upon the defendants was authorized by the statute. Is the statute, so construed, constitutional? The defendants insist that it is not, for the reason that it is in conflict with section 5 of article 1 of the state Constitution, which provides: ‘Excessive bail shall not be required; nor shall excessive fines be imposed nor shall cruel or unusual punishments be inflicted.’ Although each of the defendants was fined $20,000, the trial court imposed the mildest punishment the statute would permit for the offense of which the defendants were convicted. It must be admitted that the penalties fixed by the statute are drastic when imposed in cases where there has been a wholesale violation of the law. It is, however, clear that the purpose of the statute is to protect the wild game of the state, and that, if the punishment were not graduated according to the number of birds unlawfully possessed, this purpose would be defeated. If the penalty were not graduated, so that the greater the offense the greater the punishment, the statute would invite its own defeat. It would be absurd to punish the unlawful possession of 2,000 or more birds on the basis of one. It would have been competent for the Legislature to have provided that the unlawful possession of each bird should be a distinct offense, punishable by a fine of not less than $10 nor more than $25, or by imprisonment in the county jail for not less than 10 nor more than 30 days. If such were the statute, it could not be fairly claimed that the fine was excessive, or the imprisonment cruel or unusual, although separate indictments might be found for each offense, and in case of convictions cumulative sentences would be legal. Now, the statute in question secures the same result by treating the unlawful possession of wild ducks, no matter how many, as one offense, and graduating the punishment according to the number of birds-that is, the number of offenses, if the possession of each were declared a separate offense-thereby avoiding separate indictments and cumulative sentences. So, in its last analysis, the fines imposed in this case are seemingly excessive not by reason of the statute, but by reason of the magnitude of the offense, or of its equivalent, the number of offenses of which the defendants were convicted. The fault is theirs, not that of the statute. This method of fitting the punishment to the crime by graduating the penalty according to the number of animals, birds, or fish unlawfully killed, taken, or possessed has been adopted by the statutes of many of our sister states, and sustained as a proper exercise of legislative discretion. In this connection the case of State v. Lubee, 93 Me. 418, 45 Atl. 520, is an instructive one. The statute under consideration in that case made it unlawful to have in possession any short lobsters, and fixed the fine at $5 for each lobster. The value of such lobsters was from one to two cents each, and it was urged that the statute provided for excessive fines. The court held otherwise, and sustained the law for the reason that: ‘If the law, as urged by the respondent's counsel, be onerous to those who, like the...