Majority
p. 545Alfred L. Ainscow, d. b. a., vs. State, p. b. r.
Headnote
Game — Statutes—Construction.20 Del. Laws, c. 192, making it unlawful after December 31, 1895, to hunt, kill, take, destroy, or sell or expose for sale after the same has been killed any partridge, quail, pheasant, dr rabbit, except between November
p. 546(May 23, 1911.) Judges Boyce and Woolley sitting Superior Court, New Castle County May Term, 1911. (No. 57 March Term, 1911) 1. There is variance between the transcript of the suit below and the information filed in this court in that the style of thé prosecution in the court below was State v. Alfred L. Ainscow, while the style of the prosecution in the information is “State of Delaware v. Alfred L. Ainscow.” 2. That the act under which the information was filed, Section 1, Chapter 507, Volume 17, Laws of Delaware (Rev. Code (1893) 457) had been repealed by Chapter 192, Vol. 20, Laws of Delaware, p. 241.
fifteenth and December thirty-first in each year, is substitutional for Rev. Code 1893, p. 457, protecting game, and from and after December 31, 1895, it is not unlawful to have in one’s possession any partridge, quail, pheasant, or rabbit after the same has been killed.
Andrew C. Gray, Attorney General, for state.
Hugh M. Morris (of Saulsbury, Ponder and Morris) for appellant.
Appeal from a judgment rendered by a justice of the peace. The defendant below was found guilty by the justice of the charge of “having in his possession, on January 3, 1911, after the same had been killed, six quail and five rabbits,” and fined fifty-five dollars and costs. Information filed by the Attorney General March 2, 1911, charging the appellant as above.
Counsel for appellant moved that the information be quashed and set aside for the following reasons:
delivering the opinion of the court:
It seems to us that Chaper 192, Vol. 20, Laws of Delaware (1895), is a complete substitution for Section 1, Chapter 507, Vol. 17 (Rev. Code 1893, p. 457), down to the words “or any reed-bird,” etc., in said section. By the substitutional act it is provided that “from and after the thirty-first day of December, A. D. 1895, it shall be unlawful to hunt, kill, take, or destroy, sell or expose for sale, after the same has been killed any partridge, quail, pheasant or rabbit,” etc.
p. 547
The words “or have in his or her possession,” contained in the former act, between the words “sale” and “after” above, are omitted. Whether the omission was intentional or inadvertent, we express no opinion. It is enough to find this omission. It is our opinion that from and after the last-mentioned date, it has not been and is not now, under said substitutional act, unlawful to have in one’s possession any partridge, quail, pheasant or rabbit after the same has been killed.
The information is quashed.