
    GAME LAWS.
    [Stark (5th) Circuit Court,
    February Term, 1910.]
    Donahue, Taggart and Marvin, JJ.
    
      State of Ohio v. Leo Abt.
    Sale of Plumage of Snowy or White Heron not Unlawful in Ohio.
    A snowy or white heron is a “water fowl” and as such is a game bird within the definition of Sec. 25 of act 99 O. L. 369 (Gen. Code 1412), the possession for sale of the plumage of which is not unlawful under Sec. 22 of said act (Gen. Code 1409); these statutes are designed to protect native and migratory birds crossing the state at regular intervals or finding a home therein during certain seasons of the year and do not apply to birds such as the white heron of a vagrant or transient species.
    
      Warren Thomas, for plaintiff in error.
    
      Shields & Pomerene and Oscar M. Abt, for defendant in error:
    History of section 25 of the game law. 73 O. L. 216; 80 O. L. 93; 82 O. L. 238; 83 O. L. 188; 84 O. L. 168; 85 O. L. 323; 87 O. L. 66; 92 O. L. 116; 93 O. L. 4; -94 O. L. 234; 95 O. L. 374; 97 O. L. 463, 471; 99 O. L. 364, 382.
    
      Snowy or ivhite heron not within contemplation of statutory inhibition, State v. Both, 51 Ohio St. 209 [37 N. E. Rep. 259; 46 Am. St. Rep. 566] ; People v. Eesterberg, 184 N. Y. 126 [76 N. E. Rep. 1032; 3 L.'R. A. (N. S.) 163; 128 Am. St. Rep. 528],
    Rules of construction, 26 Am. & Eng. Enc. (2 ed.) 598; Emted States v, Fisher, 6 U. S. 399 [2 L. Ed. 304] ; Levy v. McCartee, 31 U. S. (6 Pet.) 102 [8 L. Ed. 334]; Millard'v. Lawrence, 57 U. S. (16 How.) 251 [14 L. Ed. 925] ; Bishop, Stat. Cr. Secs. 218, 227; State v. Meyers, 56 Ohio St. 340 [47 N. E. Rep. 138] ; Winnett v. State, 10 Oirc. Dec. 245 (18 R. 515), affirmed, no op., State v. Winnett, 62 Ohio St. 650.
    
      
       Affirmed, no op., State v. Abt, 83 O. S. 451.
    
   PER CURIAM.

The state of Ohio prosecuted the defendant in error, Leo Abt, before Hon. L. M. Barrick, a justice of the peace of Canton township, on an affidavit charging him with having in his possession for sale the plumage of a snowy heron, a wild bird being other than a game bird, contrary to the provisions of the statute in such case made and provided.

The defendant was convicted before the justice and prosecuted error in common pleas court of this county to reverse that judgment and conviction; and the common pleas court on a proceeding in error did reverse the judgment of the justice, State v. Abt, 20 Dee. 517 (9 N. S. 311), and the state now prosecutes error to reverse that judgment of reversal.

There were quite a number of errors assigned in common pleas court, but we think that the principal one and the one controlling in this case, involves a construction of Sec. 22 and 25 of act 99 O. L. 369 (Gen. Code 1409, 1412) : Section 22 provides that no person shall catch or kill, injure, pursue, or have in his possession, dead or alive, etc., a large number of birds, specifying them by name, and adds: “Or any wild bird other than a game bird; no part of the plumage, skin or body of such bird shall be sold or had in possession for sale.” The snowy heron is not enumerated in Sec. 22 of this act; so that if it is included within that section, it must appear from the evidence that it is not a game bird.

We are clearly of the opinion that the evidence in this case does not show beyond reasonable doubt that the snowy heron is not a game bird, and for that reason alone the reversal was proper.

Section 25 provides, among other things, that no person shall catch, kill, injure or pursue a wild duck or water fowl on Sunday or Monday of any week, or catch, kill, injure or pursue such water fowl before sunrise or after sunset. This section also enumerates a great- many other birds, and concludes as follows: “The birds named in this section shalT be known and classed as game birds in contradistinction to all other birds.”

The evidence in this ease conclusively shows that the snowy heron is a water fowl, so that undoubtedly it comes within the provisions of Sec. 25; and for that reason also, the judgment of reversal of the common pleas court was right.

It also fully appears from the evidence in this case that the snowy heron is not a native -bird of Ohio; that it is a habitant of southern waters, and is never seen in a wild state in Ohio except very rarely. So that if it is found in the state at all it is only as a vagrant individual of a species, and is not amative bird. We think these statutes are designed to protect the native birds and migratory birds that find a home in this state during certain seasons of the year, as well as other migratory, birds that cross the state at regular intervals of each year; and not merely a transient or vagrant individual of a class whose habits are not to migrate either to this state or across it.

The judgment of the common pleas court is affirmed with costs.  