People v. Tanner — 38 N.Y. St. Rep. 349

Majority

p. 349

The People, App’lts, v. Reuben Tanner, Resp’t.

(Supreme Court, General Term, Second Deportment,

Filed May 11, 1891.)

Headnote

Game law—Suckers not within.

Suckers are not within the prohibition contained in chap. 534. Laws of 1879.

Appeal from judgment in favor of defendant.

This action was brought by direction of the game and fish protector of the third district of the state of New York to recover two penalties of twenty-five dollars each, for violations of the fish and game law. The complaint alleges, as a first cause of action, a violation of § 23 of chap. 534, Laws of 1879, as amended by chap. 127, Laws of 1884, in taking, with a net, from the waters of Wappinger’s creek, in the county of Dutchess, sundry fish, to wit: bass and suckers. For a second cause of action the complaint alleges a violation of § 24 of chap. 534, Laws of 1879, as amended by chap. 11, Laws of 1886, by defendant’s having in his possession, upon the waters, or shores of said Wappinger’s creek, without permission of the’ commissioners of fisheries, said creek being inhabited by black bass and trout, a certain net used in unlawfully taking such fish..

At the trial before Mr. Justice Cullen and a jury, at a circuit court held at Poughkeepsie, December 16, 1890, it was proved, rand admitted, that defendant caught suckers, with a net, in Wap

p. 350

pinger's creek, as alleged in the .first cause of action, and no other fish were proved to have been so caught by him. There being only a question of law as to whether suckers were included in the prohibition of the statute or excepted therefrom, the court by stipulation of the parties withdrew the first cause of action from the consideration of the jury and subsequently directed a verdict for the defendant.

The second cause of action was submitted to the jury upon the-sole question as to whether the waters of Wappinger’s creek were, or were not, inhabited by black or Oswego bass; the court charging “ if you find that they were there you will find a verdict for the plaintiff on the second cause of action. If you find that they were not, you will find a verdict for the defendant upon the second cause of action.”

The jury found for the defendant.

Martin Heermance, dist. att’y, for app’lts; F. L. Akerley, for resp’t.

The ruling of the court at circuit was correct as to the first count of the indictment. It is not the province of the courts to harmonize all the special enactments of the legislature, but only to decide the questions as they arise between litigants.

It is not enough in a penal statute that the law-making power intended a certain result, but the statute must be so framed that such a result can be inferred from the words used.

It is plain from the words of the statute, § 23 of chap. 534 of Laws of 1879, that suckers are not within the prohibition therein contained, and, therefore, the defendant was not guilty of any violation of that law.

The case, upon the second count, was fairly submitted to the jury and a verdict returned for the defendant. This verdict was rendered upon conflicting testimony and cannot properly be disturbed. Cullen v. National Sheet Metal Roofing Co., 46 Hun, 562 ; 12 N. Y. State Rep., 508.

These views, if correct, are decisive of the case. We may add, however, in answer to the appellant’s argument, that we fail to see any such inconsistency in the statute as he contends for.

It is a well known fact that suckers are never taken with a hook and line unless by accident; therefore that they should not be included among the fish only to be so taken was reasonable and proper.

The indictment was based upon this section of the law and a conviction, if had at all, must be under it.

We also think costs were properly awarded against the county of Dutchess. The People v. Alden, 112 N. Y., 117 ; 20 N. Y. State Rep., 496.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.