State v. Snowman

• Decision Date: 08 May 1900
• Parties: STATE v. SNOWMAN.
• Court: Maine Supreme Court

46 A. 815

94 Me. 99

STATE

v. SNOWMAN.

Supreme Judicial Court of Maine.

May 8, 1900.

Exceptions from supreme judicial court, Franklin county.

Elmer Snowman was convicted of acting as guide without a license, and excepts and moves for a new trial. Exceptions overruled as to indictment, and sustained as to instructions, and new trial granted.

The defendant was indicted and found guilty of guiding at Rangeley without a license, under chapter 262 of the statute of 1897, and after verdict moved for an arrest of judgment, upon the following grounds:

(1) The indictment is bad for duplicity; (2) the indictment does not fully set forth the offense intended to be charged; (3) everything set forth in the indictment may be true, and still the respondent may be innocent; (4) the law is unconstitutional.

The defendant also took exceptions to certain instructions in the charge of the presiding justice, which was reported in full in the bill of exceptions. These exceptions were to the closing part of the charge, which appears below.

Charge to the jury:

"Now, Mr. Snowman is charged with pursuing since the 1st of July in this year the business of guiding upon Rangeley Lake and in that vicinity without having the license which this statute requires. It is admitted that he did not have a license, and. the only question of fact, really, for you to determine, is whether since the 1st day of July (his license for 1897 having expired the day before) he has been engaged in the business of guiding, contrary to the provisions of the statute. If he has, why then he should be found guilty by you; and, if he has not, then he is entitled to a verdict of acquittal.

"The business of guiding, defined in the statute, is as 'commonly understood.' You have heard the evidence. That question is partly one of law and partly of fact. I understand the term, 'engaged in the business of guiding as commonly understood,' to mean that the party undertakes, not necessarily in words, but by acts, to act as a guide, by the common sense of the term; that he makes a business of it, not necessarily all the time, but it may be for a portion of the time, and he may have some other business for another portion of the time. And the test is not the volume of business he may do. A man may be engaged in the business of guiding, although he may not actually discharge the duties of a guide but a few times in a season, and it may be that he may act as a mere servant for a party,—hired to row a boat for a sportsman wh'o knows the fishing ground, and does not care for any knowledge on the part of the guide; and he may be a mere boatman, and not be in the business of guiding.

"It is a question of fact for you in which capacity this man acted. I say that it may be a man's business, guiding, and yet he may do but little guiding in a season. It is conceivable that a party might advertise himself, by postals, if you please, or any way, as a guide, and he might be employed two or three times early in the season; and it is possible that he might remain at the lake the whole of the fishing season, and he might not be employed by anybody, or by but a few, and yet it is possible that he may be engaged in that business so far as he can get it to do. So that the volume of the business is not the test. * * *

"Taking his past experience, the fact that he was licensed the year before, and applied for a license this year, and what he did, and compare it with what other guides do, and perhaps you may have some knowledge about that. And then it is for you to say whether he was then or some time this year, since the 1st of July, engaged in that business to a greater or less extent, and holding himself out directly or indirectly, by words, it may be, or simply by acts, as a guide, and ready to be employed as a guide, and to discharge the offices and duties of a guide. It is all a question of fact for you to determine. I say a man may let himself as a boatman, and not as a guide. He may let himself for a servant. He may do boating, and nothing else, and not be engaged in the business of guiding, Your practical common sense will tell you the distinction. * * *

"I am requested, gentlemen, to instruct you that it is incumbent upon the state to show that Snowman has held himself out directly or indirectly to the public as a guide, and that separate acts of guiding for pay or otherwise are not necessarily proofs of Snowman having been engaged in the business of guiaing in violation of law.

"I give you that with a qualification.

"I have explainea to you what is meant by holding himself out directly or indirectly; that it need not be by words, but if he is there by employment, under circumstances which imply to the person employing him and who pays him that he has a right to act as a guide, and is employed as a guide, that would be an indirect holding out.

"Now, I have said to you that the volume of business he may do as guide is not the test, but the question is whether he has engaged in the business of guiding to a greater or less extent.

"And I think I will say to you, for the purposes of this case, as it will undoubtedly go forward to the law court, that if he acts as guide one or more times, not being licensed, he falls within the provision of the statute, as being engaged in the business of guiding. I think the statute intended to prohibit all guiding, unless by licensed guides."

Argued before EMERY, HASKELL, WISWELL, SAVAGE, and FOGLER, JJ.

E. E. Richards, Co. Atty. (L. T. Carleton, on the brief), for the State. Enoch Foster and O. H. Hersey, for defendant.

FOGLER, J.The respondent was indicted and tried for an alleged violation of the provisions of section 1 of chapter 262 of the Public Laws of 1897, which reads as follows:

"Section 1. No person shall engage in the business of guiding, as the term is commonly understood, before he has caused his name, age, and residence to be recorded in a book kept for that purpose by the commissioners of inland fisheries and game, and procured a certificate from said commissioners, setting forth in substance that he is deemed suitable to act as a guide, either for inland fishing or forest hunting, or both, as the case may be. Whoever engages in the business of guiding without having complied with the provisions of this section forfeits fifty dollars and costs of prosecution."

Section 2 of the same chapter is as follows:

"Sec. 2. Each registered guide shall from time to time, as often as requested by the commissioners, on blanks furnished him by the commissioners, forward a statement to them of the number of persons he has guided in inland fishing and forest hunting during the time called for in said statement, the number of days he has been employed as a guide, and such other useful information relative to the inland fish and game, forest fires and the preservation of the forests in the localities where he has guided, as the commissioners may deem of importance to the state."

Other sections of the chapter require that the registration provided for by the act shall take place annually on or before the 1st day of July; that, when any registered guide shall be convicted of any violation of the inland fish and game laws, he shall forfeit his certificate; that a fee of one dollar shall be paid by each person registered, and that the money thus received shall be and become a part of the fund for the preservation of inland fish and game; and that the act shall not be construed to apply to any person who has not, directly or indirectly, held himself out to the public as a guide, or solicited employment as such.

The indictment alleges that the respondent, Elmer Snowman, at Rangeley, in the county of Franklin, "on the 2d day of July in the year of our Lord 1898, and on divers other days between said 2d day of July, A. D. 1898, and the day of the finding of this indictment, was then and there engaged in the business of guiding in inland fishing and forest hunting, as the term is commonly understood, said Elmer Snowman not having caused his name, age, and residence to be recorded in a book kept for that purpose by the commissioners of inland fisheries and game of the state of Maine, and had not then and there procured from said commissioners a certificate setting forth in substance that he is deemed suitable to act as a guide either for inland fishing or forest hunting, against the peace," etc.

The jury returned a verdict of guilty, whereupon the respondent filed a motion in arrest of judgment, which was overruled by the presiding justice, and to such overruling of the motion the respondent excepts.

The respondent also excepts to an instruction given by the presiding Justice to the Jury.

The motion in arrest of Judgment alleges that the indictment is bad for duplicity, and is otherwise...