
    [No. 5182.]
    [No. 2786 C. A.]
    The People v. Johnson.
    1. Game — Replevin—Right to Prosecute — Burden of Proof.
    In an action of replevin for deer bides by tbe state game and fisb commissioner under 3 Mills’ (Kev.) Stats., § 2061, tbe burden is upon tbe defendant to allege and prove facts which entitle bim to tbe possession of tbe bides under the law.- — P. 78.
    2. Former Opinion Followed.
    This case is reversed and remanded with instructions to enter judgment again'st defendant, in accordance with Hornbeke V. White, 20 Colo. App. 13. — P. 78.
    
      
      Appeal from the County Court of Rio Blanco County.
    
    
      Mon. M. A. Wilclhach, Judge.
    
    Action by tbe people against James Johnson. Prom a judgment for defendant, plaintiff appeals.
    
      Reversed.
    
    Mr. Charles C. Post, attorney general, Mr. James D. Merwin and Mr. Geo. M. Post, assistants attorney general (Mr. E. A. Martin, of counsel), for appellant.
    Mr. M. T. Ryan and Mr. James C. Gentry, for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

This was an action of replevin, instituted in' the name of the People of the State of Colorado by the state game and fish commissioner, to recover possession of 431 deer hides, alleged to have been unlawfully taken and held by the defendant.

Authority for the institution and maintenance of this action is found in section 15, page 188, Ses'sion Laws 1899, which provides

“The commissioner may, if he so elect, bring and maintain a civil action in the name of the people of the state for the possession of any game or fish taken, killed or held in violation of this act, or for the valúe thereof, against any person in possession or exercising control over the same, and if required by the commissioner, a writ of replevin shall issue therein without bond. No previous demand for possession shall be necessary.”

In Hornbeke v. White, 20 Colo. App. 13, it was held that the act of the general assembly of 1899 (Session Laws 1899, page 184), entitled, “Game and Fish, ’ ’ entirely prohibited traffic in the game of this state or any part thereof, no matter when killed, unless expressly permitted by law, and that it was incumbent upon one in the possession of deer hides to point out some provision of the law which permitted him to have such possession, and that a failure upon the part of such person to allege and prove facts which would entitle him to possession under the law would defeat his recovery.

, Defendant in his answer simply denies the allegations of the complaint, makes no attempt to allege facts which would entitle him to the possession of the hides under the law, and there was no attempt at the trial to prove such facts. Defendant’s testimony convicted him of being in the unlawful and wrongful possession of the hides, under the law as it existed at the time they were taken under the writ, and as the law is announced in Hornbeke v. White, supra.

Numerous errors are assigned upon exceptions reserved to the rulings of the court upon the admission and rejection of evidence and the charge to the jury.

All questions raised thereby are ruled in the Hornbeke-White case, supra, contrary to the position taken by appellee at the trial, and in favor of the position taken by appellant here.

A discussion of these questions would unnecessarily prolong this opinion without resultant good. Upon the authority of Hornbeke v. White, supra, the judgment of the court below is reversed, the cause remanded with instructions to the court below to enter judgment against the defendant according to the prayer of the complaint. Reversed.

Chief Justice Gabbebt and Mr. Justice Gunteb concur.  