State v. Urban

• Decision Date: 28 November 1932
• Docket Number: 7264.
• Parties: STATE v. URBAN.
• Court: South Dakota Supreme Court

245 N.W. 474

60 S.D. 614

STATE v. URBAN.

No. 7264.

Supreme Court of South Dakota

November 28, 1932

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Proceeding by the State of South Dakota against Harvey J. Urban. From an order sustaining defendant's demurrer to plaintiff's amended complaint, plaintiff appeals.

Reversed.

M. Q Sharpe, Atty. Gen., and Benj. D. Mintener, Asst. Atty. Gen for the State.

Max Royhl, of Huron, for respondent.

CAMPBELL P. J.

Defendant was proceeded against in the court below upon an amended complaint which charged: "* * * That the defendant Harvey J. Urban at the said County of Beadle, on the 20th day of October, A. D. 1929, with force of arms then and there did wilfully and unlawfully shoot and take into his possession one Chinese Ring-Necked Pheasant in the defense of his property and at a time when said pheasant was in the corn field of said defendant eating and destroying corn belonging to said defendant, and said time when said Chinese Pheasant was so shot and taken into possession by defendant not being one of the times declared to be an open season for the shooting or possession of Chinese Ring-Necked Pheasants against the peace and dignity of the State of South Dakota and contrary to the form of the statute in such case made and provided * * *." To that amended complaint the defendant demurred upon the ground, inter alia, "That the amended complaint contains matter which, if true, would constitute a legal justification or excuse for the offense charged or other bar to the prosecution." His demurrer was sustained, and the state has appealed. The question argued in the briefs is whether or not the allegation of the complaint, that the shooting of the pheasant was "in the defense of his property and at a time when said pheasant was in the corn field of said defendant eating and destroying corn belonging to said defendant," shows a legal justification or excuse for defendant's act.

Appellant argues that, under the laws of this state, there is no right of defense of property against protected game birds other than as may be specifically provided by statute or as permitted by section 1, c. 129, Laws 1927, reading as follows: "On complaint of any freeholder or tenant of the State of South Dakota that any game animals or game birds of the State are doing damage to his or her property, upon written permission from the Director of Game and Fish, first obtained, said freeholder or tenant shall be permitted, or any Deputy Director of Game and Fish may be instructed to kill or capture such animals or birds, under such regulations as the Director of Game and Fish may provide. Any animals or birds killed under the provisions of this section shall be the property of the State and shall be disposed of in such manner as the Department of Game and Fish shall direct."

Respondent argues that he has a constitutional right to defend and protect his property (section 1, art. 6, Constitution S. D.) of which no legislative act (whether it be a statute providing for a closed season on game birds or any other conceivable enactment or regulation) can lawfully deprive him.

Those are questions which may arise and may properly be for decision by this court if and when a case is here presented in which it is made to appear that the killing of a protected bird or animal was, upon all the existent facts, reasonably necessary to the defense of persons or property. There is no such showing in this case, and no such fact situation appears by any fair implication from the language of the complaint. This court has frequently had occasion to point out that it will not decide constitutional questions upon assumed or supposititious cases, nor until it clearly appears that the constitutional question is raised by one whose substantial interests are actually affected. See Rowe v. Stanley County (1928) 52 S.D. 516, 219 N.W. 122.

Respondent presses upon the attention of the court such cases as State v. Burk (1921) 114 Wash. 370, 195 P. 16, 21 A L. R. 193, and State v. Ward (1915) 170 Iowa, 185, 152 N.W. 501, Ann. Cas. 1917B, 978. Even a casual examination of those cases is sufficient to demonstrate that they deal with a situation vastly different upon the facts from anything that can fairly be implied from the language of the complaint in the case now before us. In the Washington case defendant shot two elk at a time forbidden by the game laws of the state and had the carcasses in his possession until he surrendered the same to the county game warden. When brought to trial he offered testimony as defense and justification tending to show the following facts: "That he owned a tract of land, which was grown to corn, potatoes, meadow, and other crops; that a band of eight elk had recently been in the habit of coming upon his premises and causing damage; that a short while before he shot any of the elk, he had on one night three times driven them from his premises; that on one occasion they had killed a valuable calf, and on another severely injured another calf; that the elk were in the habit of running through his cornfield and knocking down the...