State v. Whitehead

• Citation: 116 A.2d 618,151 Me. 135
• Parties: STATE of Maine v. George WHITEHEAD.
• Decision Date: 02 August 1955
• Court: Supreme Judicial Court of Maine (US)

Page 618

116 A.2d 618

151 Me. 135

STATE of Maine v. George WHITEHEAD.

Supreme Judicial Court of Maine.

Aug. 2, 1955.

William P. Donahue, County Atty., Biddeford, for plaintiff.

Elton H. Thompson, Portland, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER, BELIVEAU and THAXTER, JJ.

FELLOWS, Chief Justice.

This is a complaint against George Whitehead before a Trial Justice in York County for night hunting. After hearing, the respondent was found guilty by the Trial Justice and appealed to the Superior Court for the County of York. He was tried in the Superior Court before a jury, found guilty, and a fine of $300 imposed. The case is now before the Law Court on exceptions relative to certain evidence admitted or excluded during the trial, and on a motion of the respondent to establish exceptions which were stated in the bill of exceptions but disallowed by the presiding Justice.

The testimony is conflicting but in substance the story is this: On or about September 18, 1954, a complaint was made by a State Game Warden in a Trial Justice Court for York County alleging that 'George Whitehead of Hollis, York County, Maine, on the sixteenth day of September in the year of our Lord one thousand nine hundred and fifty-four, at Waterboro, in said county, did then and there unlawfully hunt certain wild animals, to wit: deer in closed season, between the hours of one half hour after sunset and one half hour before sunrise of the following morning against the peace of the State, and contrary to the form of the Statute in such case made and provided.

The respondent was found guilty by the Trial Justice and appeal taken. Upon appeal the evidence heard by the jury shows that three deer were killed by the respondent in the night time, during closed season, at the Waterboro farm of Benjamin Hamilton, September 16, 1954. The killing of the three deer took place between one half hour after sunset on the sixteenth and one half hour before sunrise of the following morning. These facts appear in the testimony of the respondent.

The respondent claimed, however, that he was an employee of Hamilton, and that he had complied with the provisions of the statute that permitted the killing of deer by the owner or his employee while substantial damage was being done by the deer to the owner's crops.

Game Warden Mahaney testified that Mr. Hamilton called at his home in Saco on September 17, 1954, and reported that he (Hamilton) had shot three deer. The warden went to the Hamilton home in Waterboro and saw three deer hanging from a beam in the cellar and learned from Mrs. Hamilton that the respondent Whitehead, and not Hamilton, had shot the deer. Mahaney went down the road to a field owned by Hamilton and from circumstances ascertained that two of the deer had been shot in the field and dragged across the field, and that the third deer had jumped over a stone wall into another field.

Supervisor Marsh, of the Department of Inland Fish and Game, testified that he questioned the respondent, and that the respondent said that he was not related to Hamilton or employed by Hamilton, and further that he (the respondent) was to have some of the deer meat. The respondent also told the Supervisor that Hamilton was an old friend and former neighbor, that Hamilton was having trouble with deer in his garden; that Hamilton being elderly was not able to kill the deer himself, so the respondent went for the purpose of doing it for him. The respondent exhibited a .32 Remington automatic and a five cell flashlight that he had used. The respondent said that he fired three shots and got the three deer. The respondent stated that it was agreed with Hamilton that Hamilton was to assume responsibility for the killing and to report to the warden. Respondent stated that the deer were shot before midnight on the 16th.

Hamilton testified that he had a garden of beans planted in the spring, and that deer destroyed the first planting. He planted again, and on September 16th the deer were still damaging the garden. Another garden of vegetables was also damaged and was continually being damaged. Hamilton testified that he then went with his son to see the respondent Whitehead. 'Q. Did you ask him anything about helping you in any way? A. Well, we talked the situation over. I don't remember whether I ever said to him directly, 'Will you come up?' or, 'I want to hire you.' By the Yankee's trade, we came to a mutual agreement that he was going to come and do the job if he could.'

On the evening of the 16th, Hamilton said he drove his car to a field, taking the respondent Whitehead with him. Whitehead went towards the garden. Whitehead fired, and they found the three dead deer in Hamilton's fields. Hamilton also testified: 'Q. And when all three of them were shot at, were they in the vicinity of the garden or in the garden? A. I couldn't say as to that, but from the sound, it was in the vicinity or in the garden so far as I could tell.'

Whitehead dressed the three deer after they were 'dragged out.' Hamilton then went to warden to report that he (Hamilton) shot the three deer. Hamilton had never notified warden before this killing that deer were injuring his garden. On September 16th all that was left in the gardens were beans, tomato plants, kohlrabi, lettuce, cabbage, and endive. 'We had enough garden left for our own use.' 'I felt that if I got this man (Whitehead) into a scrape, it was up to me to assume the responsibility for it all.' When the deer were shot, Hamilton said that he did not know 'for sure' whether they were in the garden or in the fields. There was no understanding that Whitehead would be paid for killing the deer. 'He did something for me, and I did something for him; I'd tell him what I'd need, what my trouble was, and he'd come down and do it. Swap favors all the time.'

Respondent Whitehead testified that some time before, Hamilton told him that deer were damaging his crops and asked him to come and 'help him shoot them.' There was no 'specific trade' made as to what the respondent was to receive for going. One or two nights Hamilton and respondent went out, but deer were in the fields and not in the garden, and respondent returned home. On the night that he shot the deer, he testified they went out about ten o'clock, but the deer were in the fields and they went back to the house and watched television until later. About midnight, 'it could have been before, and it could have been after, I don't know. I looked up in the garden and there is a bunch of deer in the garden, and I went up and shot at those.' The respondent testified he 'spotted' the deer with a flashlight that he held against the gun. Respondent fired three shots. The deer were 'found one in the field, another one over the wall, and another one we didn't find that night. We found it the next morning.'

The following statutory provisions are applicable. 'It shall be unlawful to hunt wild animals from 1/2 hour after sunset until 1/2 hour before sunrise of the following morning.' Revised Statutes 1954, Chapter 37, Section 77.

I. Any person may take or kill deer, night or day, on land owned or occupied by him, where substantial damage is being done by deer to a fruit tree or a crop, including legumes, except grass; and he may authorize a member of his family or a person employed by him to take such deer. A person by whom, or under whose direction, such deer is wounded or killed shall within 12 hours report all the facts relative to such act to a fish and game warden. Such report shall state the time and place of such wounding or killing. A person who kills such deer shall immediately properly dress the carcass or carcasses and care for the meat. The fish and game warden shall immediately investigate the case and if he is satisfied that the deer was taken as herein provided, he shall give the person a certificate of his finding in the matter. Such certificate shall entitle such person to the ownership of the carcass or carcasses. Revised Statutes 1954, Chapter 37, Section 94.

Under the foregoing statute, if the respondent who had killed a deer in close time, seeks to justify his act, he must show by a preponderance of evidence that he owned or occupied the land on which the deer was killed, that 'substantial damage' was being done by the deer to a fruit tree or a crop (except grass) at the time. If the respondent was not the owner or occupant of the land, he must show authorization as a member of the owner's or occupant's family, or an employee. The important thing is, what was the deer in the act of doing when killed. Was the deer in the garden doing 'substantial damage,' or was the deer out of the garden, or leaving the garden, when shot? If not in the act of doing substantial damage there is no justification. See Chapman v. Decrow, 93 Me. 378, 45 A. 295. A report within 12 hours to a game warden must also be made, and the carcass dressed, as the statute requires.

On appeal, the judgment of a lower court is vacated, and the case is removed to the Appellate Court and copy of record forwarded, and respondent is to be tried and judgment rendered de novo upon both law and fact. Willett v. Clark, 103 Me. 22, 67 A. 566; State v. Houlehan, 109 Me. 281, 284, 83 A. 1106. Revised Statutes 1954, Chapter...