State v. Turnbull
| Decision Date | 14 October 1886 |
| Citation | 78 Me. 392,6 A. 1 |
| Parties | STATE v. TURNBULL and others. |
| Court | Maine Supreme Court |
On exceptions by respondents from supreme judicial court, Lincoln county.
This was a complaint under Rev. St. c. 40, § 43, against the respondents for omitting to keep their fish-weirs open during the weekly close-time. The respondents demurred to the complaint. The presiding judge overruled the demurrer, and the respondents alleged exceptions.
Roswell S. Partridge, Co. Atty., for the State.
George B. Sawyer, for respondents.
The provisions of section 43, c. 40, Rev. St., particularly that requiring an opening through weirs during the weekly close-time, were evidently enacted for the protection of "migratory fishes." This complaint is for omitting to keep the weir open. Section 31 of the same chapter, however, expressly exempts certain waters "from provisions relating to migratory fishes," and among the waters so excepted are "so much of the waters of the Damariscotta river as are west of the railroad bridge near Damariscotta mills." Section 43, therefore, cannot apply to that part of the Damariscotta river so excepted. All the acts and omissions forbidden by section 43 are not forbidden in that part of that river. They are still lawful or harmless there, however unlawful they might be in other parts of the same river. They are not mala in se, and axe mala prohibita only in one part of the river, to-wit, that east of the railroad bridge. The locality of such acts or omissions is therefore an essential element in constituting them an offense against the statute. To prove that they occurred in the Damariscotta river is not enough. They may properly occur in one part of the river. It must be proved that they occurred in the prohibited part to make them an offense. If the locality is an essential part of the offense itself, it is equally an essential part of the description of the offense, and should be alleged in any process charging the offense. This is not a case of a proviso or excuse which a respondent may or may not show in defense. He is not even prima facie guilty until he is shown to have clone or omitted to do the act in the forbidden part of the river.
The only statement of locality in this complaint is "in the waters of the Damariscotta river." The complaint, therefore, does not set out any offense prima facie. The presumption would be that the respondents acted or omitted lawfully, in that part of the river not forbidden to them. All the matters charged may have occurred in that part of the river. All the allegations may be true, and the defendant offer no excuse, and still no offense have been committed. The allegation of contra forman statuti is not an allegation of fact, but simply a statement of a logical result,— a result in law. If the premise is insufficient, as in this case, the result does not follow.
State v. Boyington, 56 Me. 512, cited for the state, was clearly a case of proviso or excuse. It was prima facie an offense to cast two...
To continue reading
Request your trial
-
Fogt v. 1-800-Pack-Rat, LLC
... ... While the procedures for each state would be the same, the timeline for each state would be different. According to Mr. Barbour, at the time Pack-Rat was responsible for the facilities, ... ...
-
U.S. v. Roach
...court is not bound by the rules of evidence and may even consider hearsay in making its determinations. See U.S.S.G. § 78 Me. 392, 6 A. 1.3(a). Although the local clerk's office no longer had a record of Jackson's 1988 petty theft conviction, that misdemeanor is contained in the records of ......
-
State v. Davis
...a limited statute applicable only to particular persons, or at particular times, or in particular places. See also State v. Turnbull, 78 Me. 392, 395, 6 A. 1 (1886). As in State v. Rowe, Me., 238 A.2d 217 (1968), the exceptions enumerated in sections 2210-A and 2212-E merely withdraw from t......
-
State v. Bunker
...before this Court. See, e. g., Toussaint v. State, Me., 262 A.2d 123 (1970); State v. Rowe, Me., 238 A.2d 217 (1968); State v. Turnbull, 78 Me. 392, 6 A. 1 (1886); State v. Boyington, 56 Me. 512 (1869); State v. Godfrey, 24 Me. 232 'The true test is, whether the lawmakers intended to create......
-
O.S.L. 322, HB 2030 – Schools
...as last amended by Section 44, Chapter 25, O.S.L. 2019 (70 O.S. Supp.2020, Section 11-103.6), is amended to read as follows: Section 11-103.6 A. 1. The State Board of Education shall adopt subject matter standards for instruction of students in the public schools of this state that are nece......
-
O.S.L. 67, HB 3311 – Education standards and assessments
...as last amended by Section 1, Chapter 118, O.S.L. 2017 (70 O.S. Supp. 2017, Section 11-103.6), is amended to read as follows: Section 11-103.6 A. 1. The State Board of Education shall adopt subject matter standards for instruction of students in the public schools of this state that are nec......
-
O.S.L. 204, HB 1469 – An Act which relates to the Oklahoma Horse Racing Commission; adding requirement for certain criminal history checks
...provisions of another statute of this state. SECTION 7. AMENDATORY 59 O.S. 2001, Section 1750.6, is amended to read as follows: Section 1750.6 A. 1. Application for a license shall be made on forms provided by the Council on Law Enforcement Education and Training and shall be submitted in w......
-
O.S.L. 227, HB 1550 – An Act relating to statutes and reports; amending 75 O.S. 2001, Sections 250.4a, 250.6, 257.1 and 303, O.S.L. 2003 (75 O.S. Supp. 2004, Section 303), which relate to the Administrative Procedures Act; requiring state agencies to conduct internal review of its rules by certain date, etc
...rights or procedures available to the public. SECTION 2. AMENDATORY 75 O.S. 2001, Section 250.6, is amended to read as follows: Section 250.6 A. 1. The Commission for Human Services may promulgate a preemptive rule pursuant to the provisions of this section: a. when the Commission for Human......