Stevens v. State
| Citation | 43 A. 929,89 Md. 669 |
| Parties | STEVENS v. STATE. |
| Decision Date | 22 June 1899 |
| Court | Court of Appeals of Maryland |
Appeal from criminal court of Baltimore city; George M. Sharp Judge.
Robert N. Stevens was convicted of the offense of exposing game for sale during the closed season, and appeals. Affirmed.
Argued before MCSHERRY, C.J., and PEARCE, FOWLER, BOYD, BRISCOE, and SCHMUCKER, JJ.
Thos I. Elliott and Harry W. Henderson, for appellant. Atty. Gen Gaither, Henry Duffy, and Geo. D. Penniman, for the State.
The appellant was indicted for having in his possession and exposing for sale in Baltimore city, during the closed season, certain dead rabbits, contrary to the provisions of section 15e, c. 206, Acts 1898. He first filed a demurrer to the indictment, which was overruled, and then pleaded non cul., and elected to be tried before the court. At the trial of the case he offered to prove that the rabbits mentioned in the indictment had been lawfully killed in another state of the Union, and had been shipped to him from that state in an original package, and that he had received and exposed them for sale in that condition, without breaking the package. The state objected to this evidence, and the court sustained the objection; and, the verdict and judgment being against the appellant, he appealed.
Acts 1898, c. 206, in its opening sections, designates closed seasons for the game birds and animals therein mentioned, including rabbits, for Baltimore city and the respective counties of the state. Section 15e then declares that it shall be unlawful for any person to have in his possession, expose for sale, sell, or buy, in Baltimore city, or the respective counties, any of the game birds or animals mentioned in the act, during the closed season for such city or county, " whether such birds or game animals so had in possession, exposed for sale, sold or bought shall have been shot or in any manner caught or killed in that county, or in any other county of this state, or in any other state, territory or country." Before the passage of the act of 1898, the law, as it then stood, after referring in its opening sections to game killed within this state, prohibited the catching and killing of game, or having it in possession, by any one in Baltimore city or the several counties, during the closed season; but the law contained no provisions indicating that it was intended to apply to game lawfully killed outside of this state. When the law in that condition came to be construed by this court in the case of Dickhaut v. State, 85 Md. 451, 37 A. 21, it was held that game which had been lawfully killed outside of Maryland and shipped into this state was not within the prohibition of the statute, and might lawfully be had in possession or sold during the closed season. Dickhaut's Case was decided in April, 1897, and at the next session of the legislature the act of 1898, c. 206, was passed, as its title recites, "for the better protection and preservation of birds and game animals"; amending the law as it then stood, and adding certain new sections, including section 15e, which contains the words which we have already quoted and italicized. It is therefore perfectly clear, both from the language of section 15e, and the circumstances of its enactment, that the prohibition of the act of 1898 was intended by the legislature to apply to having in possession or offering for sale during the closed season, not only game killed in this state, but also game killed elsewhere.
The appellant contends that the construction adopted in Dickhaut's Case, of the law as it stood at that time, is applicable to the present law, and should control the case now before us. This contention is not sound, because the language now used in the law is too plain to admit of construction, and the circumstances of its amendment clearly declare the present policy of the state to be to prohibit the possession and sale by any one during the closed season of the game mentioned in the law, no matter where it was killed.
He further insists that if the law be intended to apply to game killed without, and shipped into, this state, it is in conflict with the act of congress commonly known as the "Interstate Commerce Law," which was passed in the exercise of the exclusive power conferred on congress by the federal constitution to regulate commerce among the states. The question presented by this contention is not a new one. Many of the states of the Union have passed game laws which include among their provisions a prohibition of the sale or possession of game during the closed season, and these laws have frequently been before the state and federal courts for construction. In some of these cases, such as Com. v Hall, 128 Mass. 410, and People v. O'Neil, 71 Mich. 331, 39 N.W. 1, the statute before the court merely made the possession of game within the closed season prima facie evidence of a violation of the law, and they therefore do not throw much light upon the issue before us; but in different well-reasoned cases, where it was entirely clear that the state law was intended to exclude all game, wherever it may have been killed, from the markets of the state during the closed season, the law has been upheld. The authorities agree that the ownership of all game animals and birds is in the people in their sovereign capacity,--that is, in the state,--and no individual has any property rights in game other than such as the state may permit him to acquire; and even when game has been captured and reduced into possession by the individual, with the permission of the state, his ownership in it may be regulated and restrained by appropriate legislation enacted for considerations of state, or the benefit of the community. In other words, the cases hold that the question of enjoyment in this field is one of public policy, and not of private right. Magner v. People, 97 Ill. 320, 333; Ex parte Maier, 103 Cal. 476, 37 P. 402; ...
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