State v. Reich

298 N.W.2d 468, 1980 N.D. LEXIS 307
CourtNorth Dakota Supreme Court
DecidedOctober 27, 1980
DocketCr. 713
StatusPublished
Cited by22 cases

This text of 298 N.W.2d 468 (State v. Reich) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Reich, 298 N.W.2d 468, 1980 N.D. LEXIS 307 (N.D. 1980).

Opinions

PAULSON, Justice.

Dennis R. Reich appeals from a judgment of conviction entered against him by the Morton County Court with Increased Jurisdiction. A six-member jury convicted Reich of hunting with an artificial light in violation of § 20.1-01-08 of the North Dakota Century Code. We reverse the conviction.

On the evening of October 28, 1979, David Diede, Jr., a rancher residing near Hebron received a telephone call from a friend who notified Diede that some of Die-de’s cattle had escaped from a farmyard and fenced pasture owned by Diede. This land was located south of Hebron. Because Diede had difficulty in walking due to an injury to his knee, he called a nephew, Dennis R. Reich [the appellant] concerning the strayed cattle and Reich agreed to assist Diede in chasing the cattle into the farmyard and pasture. Diede, Reich, and two relatives of Reich’s proceeded to Die-de’s farmyard and used Reich’s pickup truck to chase the cattle into Diede’s farmyard. The farmyard contained grain bins and several other buildings.

Diede had experienced problems with raccoons damaging buildings in his farmyard and, after the cattle had been herded back inside the pasture fence, Reich used a flashlight and a spotlight on his pickup to search for raccoons under some of the buildings. At the same time, Tyler Clifford Hendrick-son, a game warden pilot for the North Dakota Game and Fish Department, was engaged in a night-flying operation in order to locate persons engaged in hunting wildlife with the aid of artificial lights, /. e., illegal spotters. A companion with Hen-drickson in the plane was Roger Eugene Johnson, a big-game biologist for the Game and Fish Department. Both Hendrickson and Johnson observed the lights shining from Reich’s pickup and concluded that illegal spotting of wildlife might be involved. They contacted Game Warden Supervisor Mardell Flaten, who proceeded to the Diede farmyard and cited Reich with a violation of § 20.1-01-08, N.D.C.C., which prohibits hunting wildlife at night with the aid of artificial lights.

At the trial, several factual issues were disputed. The main dispute concerned the time at which the alleged violation occurred. Other disputed facts concerned the location of Diede’s farmyard and fenced pasture. Flaten testified that Reich an[470]*470swered “We were hunting coon” in response to Flaten’s question about what the parties were doing in the Diede farmyard. Reich testified that he answered “I was looking for coon”. However, it is undisputed that Reich used a flashlight and the spotlight on his pickup truck to search for raccoons.

Section 20.1-01-08 and subsection 5 of § 20.1-01-02, N.D.C.C., provide as follows:

“20.1-01-08. Hunting with artificial light prohibited-Exception. It shall be unlawful for any person to pursue, shoot, kill, take or attempt to take any wildlife, between sunset of one day and sunrise of the next, with the aid of a spotlight or any other artificial light. This section does not make it unlawful for any person to use a lantern, spotlight, or other artificial light to assist him in pursuing and shooting on his premises any coyote, fox, skunk, mink, raccoon, weasel, owl, rabbit, or other predatory animal or bird, attacking and attempting to destroy such person’s poultry, livestock, or other property. It is permissible to use an artificial light of not more than two cells in the aggregate of four volts while hunting afoot for raccoon during the open season on such animal. A red or amber filter must be placed on any artificial light used in the hunting of raccoon, except when taking a raccoon treed or at bay.”
“20.1-01-02. Definitions. In this title, unless the context or subject matter otherwise requires:
“5. ‘Person’ shall include every partnership, association, and corporation. No violation of this title shall be excused because it was done as the agent or employee of another, nor because it was committed by or through an agent or employee of the person charged.”

Reich’s theory at trial and on this appeal is that Reich was an agent, a joint venturer, or a partner on the night in question. After each side had presented its evidence, the court gave both the state’s attorney and the defense counsel the opportunity to review the instructions on the law in the case. The court paraphrased § 20.1-01-08, N.D.C.C., in its instructions to the jury, but refused to submit an instruction containing subsection 5 of § 20.1-01-02, N.D.C.C. During the course of the jury’s deliberations, the jury sent to the court the following note:

“In regard to the defense of hunting with artificial light, can a person who is not the landowner help the rightful landowner hunt raccoons with an artificial light as in this case of being related and the uncle having a bad leg? Legally, is there a way of handling this?”

In compliance with § 29-22-05, N.D.C.C., the court notified the state’s attorney and defendant and his counsel of the jury’s request for further instructions. The parties also were given an opportunity to recommend answers to the questions posed in the jury’s note. After an in camera review of the questions posed in the note, the trial court directed the jury to consider the previous instructions as a whole and also directed the jury to use the instruction on the exemption to answer the questions submitted to the court. Reich’s attorney objected to the court’s response and argued that only the first sentence of subsection 5 of § 20.1-01-02, N.D.C.C., should have been incorporated in the instructions to the jury. Reich’s attorney also argued that the exemption contained in § 20.1-01-08, N.D. C.C., should have been extended to Reich and should have been included in the court’s response to the jury’s note.

Reich asserts two issues for our consideration. The issues concern the propriety of the instructions given in the case as well as the sufficiency of the evidence. Reich contends that only the first sentence of the definition of the term “person” should have been given to the jury. Reich’s argument is based upon the contention that an instruction containing the entire definition of the term “person” would be misleading because the second sentence of the definition operates to proscribe the exemption contained in § 20.1-01-08, N.D.C.C., from application to agents or employees. The court did not submit an instruction on the definition of the term “person”. However, § 20.1-01-08, N.D.C.C., was submitted to the jury in paraphrased language as an instruction.

[471]*471The basic issue that confronts us is whether or not the agents or employees of another may avail themselves of the exemption contained in § 20.1-01-08, N.D.C.C., which states that it is not unlawful for any person to use a lantern, spotlight, or other artificial light to assist him in pursuing and shooting on his premises predatory animals or birds which are attacking and attempting to destroy that person’s poultry, livestock, or other property. This issue requires us to examine the history of legislative intent.

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State v. Reich
298 N.W.2d 468 (North Dakota Supreme Court, 1980)

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Bluebook (online)
298 N.W.2d 468, 1980 N.D. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reich-nd-1980.