People v. Dunston

84 N.Y.S. 257

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 22, 1903
• Status: Published

Opinions

FREEDMAN, P. J.

This action was brought to recover penalties prescribed for an alleged violation of the act commonly known as the “Forest, Fish and Game Laws” (chapter 20, p. 22, Laws 1900). The complaint charges the defendant with having “unlawfully, willfully, and knowingly possessed four quail during the close season for quail, contrary to the form of the statute in such cases made and provided.” The section claimed to have been violated is section 28, which provides that “quail shall not be sold or possessed during the close season,” etc. The penalties imposed are one for $60, and an additional one for $25 for each bird or part of a bird taken or possessed in violation of the act, and also declaring the offending party guilty of a misdemeanor. The complaint in this action contained no allegation as to the nature of the business carried on by the defendants, nor was there any proof offered on the trial as to what kind of business the defendants were engaged in. The only proof adduced on the trial was that given by one John E. Overton, who was a state game constable, and who testified that he was entitled to receive one-half of the penalty collected, after expenses are deducted; and one Franklin N. Moore, who was in company with Overton at the time he testified the quail were eaten. This action being a qui tam action, the proof must be strict. “Every fact necessary to constitute the offense for which the recovery is sought must be averred, and no intendments are allowed in favor of the per7 son for whose benefit the suit is brought.” Higgins v. Dakin, 86 Hun, 461, 33 N. Y. Supp. 890; People ex rel. Mutual Life Ins. Co., 72 Ill. App. 569. Wood’s testimony is the most favorable of any given in the case to sustain the plaintiff’s complaint. He'testifies that Overton and himself, with two young ladies, on the evening of the 18th of February, 1902, went into the defendants’ place about half past 11. “We ordered quail from the waiter, and he said, T will have to see,’ and he went back and spoke to some one in the rear of the place—ostensibly the manager—and afterwards he came back, and said it was all right, and he served us with four quail.” The quail were eaten by the party, and this action was brought. This is the only testimony in the record that in any way points to defendants. It is admitted by the witnesses that they did not see either of the defendants about the place. Who the waiter or manager was does not appear, if in fact there was a manager at all, and the only proof in support of the complaint is that some one in the premises of the defendants called by the witnesses a “waiter” served said witnesses with quail. This fails to show possession in fact in the defendants, and the decision of the trial justice in dismissing the complaint in view of the nature of this action upon the meager facts shown was correct. In the case cited by the appellant— People v. Buffalo Fish Co., 164 N. Y. 99, 58 N. E. 34, 52 L. R. A. 803, 79 Am. St. Rep. 622—actual possession in the defendant was shown, and the court there held that the burden was cast upon the defendant of proving such possession was legal.

Judgment affirmed, with costs.