People v. White — 22 N.Y. Crim. 6

Majority

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SUPREME COURT—APP. DIVISION—THIRD DEP.,

January, 1908.

THE PEOPLE v. CHARLES L. WHITE.

(124 App. Div. 79.)

Headnote

Forest, Fish and Game Law Penalty—Hunting Deer with Dogs—• Several Liability for Penalty—Laws 1900 oh. 20 sec. 9, as AMENDED.

Every person engaged in the act of hunting deer with a dog is individually liable for the penalty provided in the Forest, Fish and Game Law. The penalty is not intended as a satisfaction of the loss, but as a punishment of the offenders, and hence it is no defense that other persons concerned in the same act are not joined as defendants, or that the penalty sought to be recovered has been paid by them. The statute makes the offense several and every offender separately liable whether he actually engages in the prohibited act or only counsels, aids or assists in its violation.

Appeal by the defendant, Charles L. White, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 10th day of June, 1907, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, sustaining the plaintiff’s demurrer to the second and third defenses set up in the amended answer.

The action was brought to recover penalties for violations of the Forest, Eish and Game Law.

The second defense alleges that four other persons therein named, or some of them, committed the several acts set forth in the complaint, and incurred and became liable for the penalties, and each of them, sought to be recovered in this action; that said persons, or some of them, were charged by the plaintiff, through, its representative, with having committed the several acts complained of, and with having become liable for the penalties sought to be recovered in this action, and that they, or some of

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them, settled, compromised and paid the plaintiff the penalties sought to be recovered herein of the defendant. For a third defense the defendant alleged a defect of parties defendant for the reason that the several persons named therein, “ some or all of them, committed the several acts set forth in the complaint, and incurred and became liable for the penalties sought to be recovered in this action, and they or some of them should, therefore, be parties defendant in this action.”

Lomen E. Ginn> for the appellant.

D. B. Lucey, for the respondent.

By section 9 of Chapter 20 of the Laws of 1900, as amended by chapter 545 of the Laws of 1901, it is provided, among other things, that “ Deer shall not be hunted, pursued or killed with any dog or bitch;” and section 16 of that act, as amended by chapter 319 of the Laws of 1905, provides that a person who violates this provision is guilty of a misdemeanor, and in addition thereto, is liable to a penalty of $100 for each violation, and to an additional penalty of $100 for each deer so taken or possessed.

This appeal presents the question whether only one penalty is imposed when two or more persons concur in the act of hunting, pursuing or killing a deer with a dog, and whether only one penalty attaches, for each deer so taken or possessed.

It was said in Palmer v. Conly ( 4 Den. 378 ) : “ The rule at common law is universal that every crime, as far as respects the guilt and punishment of the parties engaged in the perpetration of it, is several; and that if two or more persons concur in the commission of an offense, each offender is liable to a several punishment. This principle extends to statute offenses as well as those which are punishable by the common law; and in general

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there is no distinction in the application of it between the higher kinds of punishment and fines or mere pecuniary penalties.”

The doctrine of that case applied to the questions under consideration leads to the conclusion that every person concerned is separately liable to the penalty, for it is obvious that the Legislature did not intend the penalties imposed by this statute as a satisfaction for a loss, but as a punishment of the offenders.

The statute itself has made the offense several and every offender separately liable. It, in terms, imposes a penalty not on an offense which several made do jointly, but upon “ A person who violates,” meaning any and every person who violates, and for each and every violation.

Subdivision 8 of section 140 of the statute (as amd. by Laws of 1904, chap. 580) confirms this interpretation. It declares that “ A person who counsels, aids or assists in a violation of any of the provisions of the Forest, Fish and Game Law, or knowingly shares in any of the proceeds of said violation by receiving or possessing either fish, birds, game or timber, shall be deemed-to have incurred the penalties provided in this act against the person guilty of such violation.”

From the language of this section it is apparent that the Legislature intended to make each offender separately liable whether he actually engages in the prohibited acts or only counsels, aids or assists in a violation, or knowingly shares in the proceeds. (People v. Girard, 73 Hun, 457 ; affd., 145 N. Y. 105 .)

It follows that the interlocutory judgment should be affirmed, with costs, and with leave to the defendant to amend ixpon payment of costs of demurrer.

All concurred.

Interlocutory judgment, affirmed, with costs, with leave to defendant on payment within twenty days of such costs and of the costs in the court below, to serve an amended answer.