
    Thomas J. Rollins, as Game Constable of the Town of McDonough, N. Y., Resp’t, v. Merritt Bread, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889)
    
    Game law—Conviction under not a bar to action for penalty for SAME ACT.
    A conviction for a misdemeanor under chap. 534, Laws of 1879, is not a bar to an action to recover the penalty prescribed by the statute for the same act. The fine and penalty are parts of the same punishment.
    Appeal from the judgment of the Chenango county court, affirming a judgment of justice’s court.
    Action for penalties for catching black bass from Geneganslet lake, on or about May, 1888, in violation of chapter 534 of the Laws of 1879, and the acts amendatory thereof.
    
      George W. Marvin, for app’lt; James W. Glover, for resp’t.
   Merwin, J.

By § 21 of chapter 534 of the Laws of 1879, as amended by chapter 619 of 1887, it is provided among other things that, between the 1st day of January and the 13th day of May, no person shall catch or kill any black bass in any waters of the state, excepting certain named localities not important here, and that “any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty for ten dollars for each fish.” By § 33, it is provided that all penalties imposed by the act may be recovered by any person in his own name, and any judgment recovered be enforced by execution against the person. By § 34 it is provided that any person who shall be found guilty of a misdemeanor under any of the provisions of the act “shall, upon conviction, be punished by a fine of not less than five dollars, nor more than at the rate of one dollar for every dollar of the penalty provided by the section so violated, when the same exceeds five dollars, or by imprisonment in the county jail or penitentiary for a period of not less than five days nor more than at the rate of one day for every dollar of any such penalty, or by such fine and imprisonment, in the discretion of the court.”

Provision is made by § 38 for the election of game constables, and it is made their duty, after reliable information, to prosecute all violators of the act, and they are to receive a compensation for such services the same as is allowed by law for like services to constables of towns, and also one-half of all penalties recovered.

In the present case, the justice rendered a judgment for a penalty of ten dollars. The evidence warranted the conclusion of the justice that the defendant had violated the act, and, therefore, was liable for the penalty, unless there was something else that would reheve him. In this view it was alleged and shown that, upon the same day that the summons in the action was served, the defendant was arrested upon warrant, issued by the same justice, upon complaint of the game constable, for a misdemeanor for a violation of the act referred to, being the same acts complained of in the action for the penalty; that on such warrant the defendant was brought before the justice, and plead guilty, and was fined five dollars, which he paid. The claim of the defendant is that this criminal prosecution is a bar to the recovery of the penalty. To uphold this claim, the case of United States v. McKee, 4 Dill., 128, is mainly relied on. That was an action based on § 3296 of the United States Eevised Statutes, to recover the penalty of double the amount of taxes on distilled spirits, out of which the plaintiff alleged it was defrauded by means of conspiracy entered into for that purpose by the defendants and others for the unlawful removal by the distillers of said spirits without the payment of taxes. The defendant plead that he had been indicted, convicted and punished for the same offense under § 5440 of the Revised Statutes, being sentenced to pay a fine of $10,000, and to imprisonment for two years. He also plead a pardon. Upon demurrer, the pleas were held good, it being said that if the specific acts of removal on which the suit is brought are the same which were proved in the indictment, the former judgment and conviction is a bar. Section 5440 is a general provision applicable to any conspiracy to commit any offense against the United States, or to defraud the United States in any manner, and making all the parties to the conspiracy liable to a penalty of not less than $1,000, and not more than $10,000, and to imprisonment not more than two years. Section 3296 is specific, having reference to the removal, contrary to law, or concealment of any distilled spirits on which the tax has not been paid, and provides for a penalty of double the tax imposed, and a fine of not less than $200, or more than $5,000, and imprisonment not less than three months, nor more than three years. The McKee case was referred to in Coffey v. United States, 116 U. S., 436, where it was held that a judgment of acquittal on a criminal information against the defendant, based on certain sections of the Revised Statutes, was conclusive in favor of the defendant in an action brought under the same section for the forfeiture of certain goods, the same violations of law being alleged in both. It was an adjudication of the innocence of the defendant.

The McKee case differs somewhat from the present one. There there were two separate statutes, each furnishing a complete remedy for the charge. The government chose to enforce one, and it might well be said that a conviction and punishment under that ended the right of the government Here there is but one statute and the complete remedy contemplated by it includes the penalty as well as the punishment as for a misdemeanor. A similar provision is in many of our state statutes, notably in the excise acts. Chap. 628 of Laws 1857; title 9, chap. 20, part 1, of the Revised Statutes. The latter act provided for specific penalties for divers violations and also provided, § 25, that all offenses against the provisions of the title should be deemed misdemeanors, punishable by fine and imprisonment. The People v. Stevens, 13 Wend., 341, was the case of an indictment against the defendant under that statute for selling strong or spirituous liquors in quantity less than five gallons, to be drank at his house, without having a license as a tavern keeper. The defendant plead in bar that he had been previously sued for the same offenses by the overseers of the poor in an action of debt for the penalty given by the statute, in which suit judgment was rendered against him for twenty-five dollars and costs, which he had paid. This was held to be no defense. The court said: “ It is undoubtedly competent for the legislature to subject any particular offense both to a penalty and a criminal prosecution; it is not punishing the same offense twice. They are but parts of one punishment; they both constitute the punishment which the law inflicts upon the offense. That they are enforced in different modes of proceeding, and at different times, does not affect the principle. It might as well be contended that a man was punished twice when he was both fined and imprisoned, which he may be in most misdemeanors.” In Blatchley v. Moser, 15 Wend., 215, it was held that an indictment under the twenty-fifth section above referred to, for selling spirituous liquors without a license as a tavern keeper, is no bar to an action for the penalty given by the statute in such a case, it being said by Savage, Ch. J., that the offender is liable under both sections in the same manner that a person guilty of an assault and .battery is liable to the individual and to the public. See, also, People v. Brown, 16 Wend., 561.

In People v. Shea, 3 Parker, 562, the power of the legislature to punish an act as a misdemeanor in addition to imposing a penalty is recognized, and so it was, impliedly, in Behan v. The People, 17 N. Y., 516; Foote v. The People, 56 id., 321; The Mayor, etc., v. Hyatt, 3 E. D. Smith, 156; People v. Waterbury, 44 Hun, 496; 9 N. Y. State Rep., 5. In Morris v. The People, 2 Thompson & Cook, 219, it is said by Justice Platt Potter that it is well settled that offenses under the excise act were misdemeanors and indictable, notwithstanding the offender may have been sued in a civil action and the penalty collected.

The rule laid down in People v. Stevens seems to be well established and is directly applicable to the present case. Under that rule the enforcement of either branch of the punishment or remedy would be no bar to the enforcement of the other.

It follows that the judgment appealed from is correct and should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  