Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-09-20
WARDEN HAGUE WINS.
A Decision Against the Defendant in
the Famous Quail Case.
NO INTERSTATE QUESTION IN 1T.
Unlawful to Sell Game Out of Season No
Matter Where Killed.
JUDGE EWINGs LENGTHY OPINION

The famous quail case of Game Warden
Hague has been decided. According to
Judge Ewing's decision, it is unlawful to
possess or offer for sale in Pennsylvania any
game during the time prohibited by law,
regardless OF where it may have been killed.
The decision is so broad that even if game
had been killed in California and kept two
years on ice it would still be violation of
the game laws to expose it for sale in Penn
sylvania outside of the time such sale is
legalized in this State.
On January William Wilkinson offered
for sale 20 quail In the Pittsburg market.
He was prosecuted by Game Warden
Hague on the ground that such a sale was
illegal between January and October 15.
The case was tried before Alderman Cassidy.
Wilkinson was found guilty and find $40
for each bird. He refused to pay the fine
and was sent to Jail for 200 days. He was
bailed out and the case taken to court. 1t
came before the grand jury last March and
true bill was found. Clarence Burleigh
and A. D. Wilkin were the attorneys for
the defendant. They put forth as their plea
that the game had been bought in
st. Louis where it was perfectly legal to kill
such game. They cited a similar case which
was tried before Judge Bailey in 1887, that
of Commonwealth versus Voight, in which
the defendant won on principle similar to
that which allowed the sale of original pack
ages.
TOOK TIME TO STUDY IT.
The case was tried before Judge Ewing.
The nut was too hard for him to crack at
once so he reserved his decision and carried
the papers in the case with him to Europe.
He has just returned, and yesterday he
handed down mis- decision, which is as fol-
lows:
According to the special finding of the jury
the defendant had in his possession and offered
for sale in the city of Pittsburg. on January g.
1890, 20 quail, and that these quail had been
purchased in st. Louis on December B. 1889.
when, presumably, the law permitted the kill
ing and sale of the game at that time. No
question OF Interstate commerce arises In this
case; thedefendant was offering for sale his own
property.
The ninth section of the act of Assembly of
June 8, 1878 declares that mo person shall
kill or expose for sale, or have in his or her
possession, after the same has been killed, any
quail between the lst day of January and the
18th day of October under the penalty of $40
for each bird so killed, exposed for sale or had
in possession BY the supplement of May %,
/
the 18th day of December to the 18th day of
October next following
This provision imposing penalty for having
in possession or exposing for sale game that has
been lawfully killed, goes to the extreme verge
of the police power of the State, but it seems
to have been sustained in numerous instances
by the higher courts of some of the States. and
we will assume that it is a constitutional pro-
vision.
A VERY BROAD ACT.
The learned counsel for the defendant does
not impeach the constitutionalIty of the act. |
but claims that it does not cover the acts of the
defendant in this case. That the provisions of |
the thirty third section of the act THAT in all
cases of the violation of each or any of the |
foregoing sections of this act the possession of
game or birds - provided for as so mentioned. |
shall be prima facia evidence OF the
not intended to make the possession |
of game during the prohibited period an Of
fense. There are exceptions in the act. The |
section of the act gives Is days |
for the disposition of game after the time llm- |
tied within which it is lawful to kill it-within |
that 15 days possession an offering for sale |
would be but prima facia evidence of guilt.
The sixteenth, twentyeghth and twenty
ninth sections of the act also make exceptions |
to the general provisions of the act. and proof
that the defendant came under any of these
imposed by the act. But the defend
ant has not thought himself within
any of these exceptions This being
The case, we see no logical escape from
the conclusion that the Legislature Intended
to and has made it penal offense to have in
and expose for sale under the cir
which have been found by the
Jury. And the fact that he purchased it in
another State and offered it for sale in this
State raises no exception to the broad terms of
his act of Assembly.
The statute of the State of New York is
IDENTICAL with ours and in Phelps versus Ray
10 N. Y, it was held that the place where the
yame was killed was of no Importance. Wag-
1er versus the people, Supreme Court (lll.),
holds to the same doctrine.
Judge Ewing then cited a number of
Eases in other States where similar decisions
lad been given, and then closes as follows:
In the former case in our own court decided
,y Judge Bailey, Commonwealth versus Voight
,hese rulings of other courts seem to have
been overlooked. We must decide the law as
we find it. not as we would have it,
Judgments will be entered on the verdict on
notion of the District Attorney.