
    
      Supreme Court—General Term—Second Department
    December, 1893.
    PEOPLE v. FRANK McMASTERS.
    (56 St. Rep. 418; 74 Hun, 226.)
    Game law—Liability.
    Where the defendant goes a hundred yards to shore with fish, and then makes complaint to the game constable because the latter throws them back into the water instead of offering some of them to him, there is no question but that he knowingly has them, and is liable to the penalty prescribed by section 102, chapter 448 of 1892.
    Wilmer H. Dunn, for appellant.,
    R. Corbin, for respondent.
   HERRICK, J.

This is an appeal from a judgment entered upon the verdict of the jury in favor of the defendant, and against the plaintiff, and from an order denying the motion to set aside such verdict. The action is to recover penalty for violation of the game laws of the state, and for the purpose of this appeal it is sufficient to take the defendant’s version of the transaction. His statement is, that he was trolling for fish, and while so trolling, his line got hitched or caught to something, and then when pulled in, he found that it was a net; that he pulled the net, and the fish contained in it into his boat, and started for shore; that when he reached the shore, he saw a game constable who asked him what he was going to do with the net, to which the defendant replied, that he was going to destroy it; then the game constable said he was going to destroy it, for he got paid for that; the constable then took the net and cut it up, and threw the fish back into the water. That the defendant asked him to give him a few, saying, “you are hoggish, why don’t you leave some for me to cook.” The point from where the defendant found the net, to where he landed was about one hundred yards. The statute prohibiting the taking of fish in any manner or device except angling reads as follows: “ Fish taken contrary to the provisions of this section shall not be knowingly possessed.” Section 102, chapter 488 of the Laws of 1892. There is no pretense but what the taking of the fish in a net is contrary to the statute. There is no question, from the defendant’s own evidence but what he had in his possession fish caught in the net and there is no question but what he knowingly had them.

I can see no inference that can be drawn from the testimony, other than that he intended to keep them. He goes a hundred yards to the shore with them in his possession, and he then makes complaint to the game constable because he threw them back into the water instead of offering some of them to him, the defendant, to cook.

Still it may seem rather harsh to hold a person liable for having fish in his possession taken under the circumstances that the defendant claims these were; on the other hand, it is very plain to be seen that a story of the kind here told may be a device to escape the penalty of the law.

But whether harsh or not, it is the law; and the law in question if it is to be of any benefit must be strictly construed, and jurors are not at liberty to disregard it, because they think that in any particular case it is harsh, and the penalty heavy for the offense committed; they are not at liberty to disregard the evidence. In this case the evidence of the defendant himself shows a violation of the law. Therefore, judgment should be reversed, and a new trial ordered, costs to abide the event.

MAYHAM, P. J., concurs.

PUTNAM, J.

Defendant did not catch the fish in question. He found them in a net placed by another party. He proceeded to take the net with the fish in it to the shore. While they were being so conveyed I think the fish were not in possession of defendant within the meaning of the statute, unless he intended to keep them. It is not clear that he so intended. The presumption is against such an intention. I think the question of his intent under the circumstances of the case was one of fact for the jury, and hence that the trial judge properly disposed of the case.  