
    The People of the State of New York, Appellant, v. Adelbert Snyder, Respondent, Impleaded with Willis Van Aernam.
    
      A person indicted for burning a fallow in violation of section 229 of the Forest, Fish and Game Law may, after being acquitted, be sued for the penalty provided in that section — the defendant’s intent is immaterial.
    
    The trial and acquittal of a person indicted under section 229 of the Forest, Fish and Game Law (Laws of 1900, chap. 20), which prohibits the burning of fallows, stumps, etc., during certain periods of the year, and further provides: “Any person violating any provision of this section is guilty Of a misdemeanor, and in addition thereto is liable to a penalty of three hundred dollars,” does not constitute a bar to the maintenance of a civil action by the People of the State of Hew York against such person to recover the penalty provided in that section.
    Williams and Stover, JJ., dissented.
    An action for the penalty prescribed in this section is a civil action pure and simple, and the question of the defendant’s intent is riot a necessary feature of the plaintiff’s case.
    Appeal by the plaintiff, The People of the State of New York, from so much of' a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the' 23d day of April, 1903, as was entered upon the dismissal "of the complaint by direction of the court as to the defendant Snyder, after a trial at the Lewis County Trial Term, and also from so much of an order entered in said clerk’s office on the 27th day of April, 1903, as denies the plaintiff’s motion for a new trial as to the defendant Snyder, made upon the minutes.
    
      C. S. Mereness, for the appellant.
    
      Ryel & Merrell, for the respondent.
   Spring, J.:

The defendant and one Van Aernam were sued for a penalty in burning á fallow in violation of section 229 of the Forest, Fish and Game Law (Laws of 1900, chap. 20). The record shows that the defendant Snyder had been indicted, tried and acquitted for the same acts which constituted the cause of action. Upon the presentation of the record of acquittal the complaint was dismissed as to him and the jury acquitted Van Aernam. The People appeal only from the judgment of dismissal, and the single question up for review is whether the judgment of acquittal is a bar to the action by the People to recover the penalty which the section provides.

Section 229, after prohibiting the burning of fallows, stumps, etc., during certain periods of the year, prescribes: “ Any person violating any provision of this section is guilty of a misdemeanor, and iii addition thereto is liable to a penalty of three hundred dollars.”

Two distinct remedies áre allowable against' one violating the provisions of this section of the act. One to obtain the punishment of the offender for committing a misdemeanor, and the other a civil action to recover the penalty. This method of double punishment of offenders guilty of misdemeanors has long been much in vogue by various statutes in this State. For- instance, chapter 628 of the Laws of 1857 (Excise Law); section 2Í of chápter 534 of the Laws of 1879 (fishing out of season); section 19 of' chapter 183 of the Laws of 1885 (deception in sales of dairy products).

At the outset it will be noted that the. conviction or acquittal in the criminal action would hot be conclusive against one who has sustained damages by the acts which compose the criminal charge. From the early history of the State this has been made so by statute. (Newton v. Porter, 5 Lans. 416, 423.) The Code of Civil Procedure in a sweeping section (1899) provides that civil and criminal prosecutions do not merge. (See, also, sections 8 and 13 of that Code as to criminal contempts.)

The contention here, however, is founded largely upon the facts that the two remedies are prosecuted in the name of the People, and the suit for the penalty is quasi criminal in character. They are, however, entirely independent, and one is a criminal and the other a civil action. The rules governing the trials in the two cases, are dissimilar. In the criminal action the evidence must satisfy the jury of the guilt of the defendant beyond a reasonable doubt. The taking of the evidence of a non-resident witness by commission at the instance of the People is not permissible in a criminal prosecution. The manner of eliciting proof is more restricted and the district attorney in presenting the case to the jury must keep in a more narrow groove than the counsel in a civil action. (People v. Fielding, 158 N. Y. 542, 547; People v. Milks, 55 App. Div. 372.) The jury without any departure from the strict letter of the law or from any misapprehension of the evidence might acquit in a criminal action and upon the same proof and with equal propriety render a verdict for the amount of the penalty.

The authorities in this State as far as our research has extended are uniform in holding that the two actions áre not at all dependent upon each other. In People v. Rohrs (49 Hun, 150) the action was to recover penalties pursuant to chapter 183 of the Laws of 1885, entitled An act to prevent deception in the sale of dairy products.” The act made the offender guilty of a misdemeanor punishable by fine or imprisonment and in addition thereto provided that he should forfeit and pay a penalty of $500. The " statute, it will be observed, is almost identical with the one under consideration. The defendants offered to prove that the defendant Rohrs had been tried and .acquitted for the offense set Out in the complaint, but the evidence was excluded. Upon appeal the court sustained this ruling saying (at p. 150) : “ The parties to the criminal proceeding were the People, the plaintiffs in this action, and Rohrs, one of the defendants-in this action. The question litigated in the criminal proceeding was whether or not Rohrs had violated the statute. It was judicially determined that he had not so done. It would seem, therefore, that the very question to he tried in this action had already been litigated between the parties and determined in the defendant Rohrs’ favor. The difficulty, however, in holding that the result in the criminal proceeding estopped the People from trying the question of Rohrs’ violation of the statute in this action, arises from the fact that if Rohrs had been found guilty in the criminal action, the record in that action would not have been evidence against Rohrs in this action, and, therefore, because of the want of mutuality, no estoppel can arise.” In People v. Stevens (13 Wend. 341) the defendant was indicted for selling liquor -without a license. He pleaded in bar a judgment in a civil action for a penalty for the same offense. The district attorney demurred to the plea and it was held bad by the Court of Sessions and upon appeal the judgment sustaining the demurrer was affirmed. The court say (at p. 342): 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 People v. Meakim (133 N. Y. 214) the court quoted the above excerpt from the Stevens case approvingly (p. 224) and an analysis of the authorities is there given and the conclusion reached that the two remedies may be followed and the adoption of the one is not exclusive of the other. Blatchley v. Moser (15 Wend. 215); Rollins v. Breed (54 Hun, 485) and Behan v. People (17 N. Y. 516) are along the same line. The text books announce the same principle. (1 Greenl. Ev. [15th ed.] § 537; Whart. Ev. § 777; 24 Am. & Eng. Ency. of Law [2d ed.], 831.) '

We are aware that the contrary principle has been maintained in Coffey v. United States (116 U. S. 436), but as the policy of the courts of our own State has been so consistent and uniform in the direction indicated we feel bound to follow them. The chief reason urged by the United States Supreme Court for the adoption of the doctrine that the two remedies cannot both be pursued is that the suit for the penalty is in effect criminal in its character. As has been seen, that principle does not obtain in our State, but the action for a penalty is treated like any other civil action.

In Stone v. United States (167 U. S. 178) the Coffey base was in a measure limited. The Stone case was an- action of conversion and the defendant Stone had been acquitted on an indictment in the United States District Court for the same offense which was made the basis of the civil action also prosecuted in the name of the United States. The defendant pleaded the judgment of acquittal in bar of the civil action, but the court of last resort held against him. After distinguishing the Coffey case, the court said (at p. 188): “ The rule established in Coffey's case can have no application in a civil case not involving any question of criminal intent or of forfeiture for prohibited acts, but turning wholly upon an issue as to the ownership of property. In the criminal case the government sought to punish a criminal offense while in the civil case it only seeks in its capacity as owner of property, illegally converted, to recover its value. In the criminal case his acquittal may have been due to the fact that the government failed to show, beyond a reasonable doubt, the existence of some fact essential to establish the offense charged, while the same evidence in a civil action brought to recover the value of the property illegally converted might have been sufficient to entitle the government to a verdict. Not only was a greater degree of proof requisite to support the indictment than is sufficient to sustain a civil action ; but an essential fact had to be proved in the criminal .case, which was not necessary to be proved in the present suit. In order to convict the defendant upon the indictment for unlawfully, willfully and feloniously cutting and removing timber from lands of the United States, it was necessary to prove a criminal intent on his part, or at least that he knew the timber to be the property of the United States.”

The action for a penalty is a civil one, pure and simple, and the question of the defendant’s intent is not a necessary feature of the plaintiff’s case. (People v. Kibler, 106 N. Y. 321; People v. Laesser, 79 App. Div. 384.) The plaintiff made his prima facie case by proving that the defendant burned the fallow within the prohibited period. Whether done negligently, with malicious intent or in a spirit of sport is unimportant. If the maintenance of the action depended upon proving that the defendant set the fire maliciously or with intent to do damage to his neighbor, the statute might be nullified.

Whether the action for the penalty is to be sued for in the name of the People or of an informer or of an official, it is still a civil remedy by the statute. The test is not that the civil action is in form prosecuted in the name of the People which would make it objectionable. The criticism indulged is that the action is authorized if at all after the other remedy allowed by the statute has been resorted to. The doctrine upon which the cases in our State rest gives no room for this technical construction. They proceed upon the ground that the remedies are separate and were so intended by the lawmakers. Neither upon principle nor authority do we regard the one as a bar to thé maintenance of the concurrent or independent remedy.

Nor does the determination reached result in putting the defendant twice in jeopardy for the same offense within the proper meaning of that phrase. (Const, art. 1, § 6.) He had been once tried on an indictment where different inferences, a different mode of procedure,' a different rule as to the competency of witnesses prevail from.what are allowable iii the civil action.

It was not necessary to obtain the conviction of the defendant before resorting to the penalty. (People v. Waterbury, 44 Hun, 493.)

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Williams, J., dissenting in an opinion in which Stover, J., concurred.

Williams, J. (dissenting):

The judgment and order should be affirmed, with costs.

The action was brought to recover' a penalty of $300 for burning logs, etc., in a fallow, at a time of year prohibited by section 229 of the Forest, Fish and Game Law (Laws of 1900, chap. 20). That section provides: “ Any person violating any provision of this section is guilty of a misdemeanor, and in addition thereto is liable to a penalty of three hundred dollars.” The defendant appellant was arrested for a misdemeanor under this statute, pleaded not guilty, and upon liis trial therefor was acquitted. This action was based upon the same prohibited act for which he was tried and acquitted. The trial court held the acquittal on trial for the mis-: demeanor was a bar to a recovery of the penalty, and the correctness of this ruling is the only question involved in this appeal.

We do not think it necessary to enter upon any discussion of the question involved, inasmuch as there are at least two cases reported which involve practically the same question and which are directly in conflict with each other. (People v. Rohrs, 49 Hun, 150 ; Coffey v. United States, 116 U. S. 436; approved in Stone v. United States, 167 id. 178.)

The Sohrs case was decided by the first department, General Term, in 1888. The Ooffey case was decided in 1886, and was approved in the Stone case in 1897. . The rule of law laid down in the Ooffey cáse was that adopted by the trial court in the present case, and seems to have been well considered and to be the settled law of the United States Supreme Court. The opinion in the Sohrs case was a per curiam one, and the attention of the General Term was not apparently called to the Ooffey case or the reasoning of the court upon which that case was determined. The General Term held 'the former acquittal was not a bar to the recovery of the penalty.

We think, under this condition of the decisions, that we should follow the.rule laid down in the United States Supreme Court, and that the judgment - and order should, therefore, be affirmed, with costs.

Stover, J., concurred. .

Judgment and order reversed and new'trial ordered, with costs to the appellant to abide event.  