The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-09-20
FAV)RED By LAW ANDFACI
JUDGE KELLY DECIDES PRESUMP~
TIoN OF BOTH ARE IN RE-
LATOR'S FAVOR
M'GREGoR CASE IS REVIEWED
Decision Is Ordered by District
COurt-Judge Holds Facts Stated
In Complaint Sufficient to
Constitute Offense.

In a decision handed down by Judge
Kelly yesterday afternoon the discharge
of Charles McGregor, held to the grand
jury for an alleged violation Of the state
game laws, was ordered.
McGregor, it will be remembered, was
arrested at the Union depot while tax
ing from the baggage department a sack
or valise, the opening of which disclosed
to the vigilant game agent, no less than
sixteen nice prairie chickens. In the COM
plant, which accompanied his arrest,
the relator was charged with wrong
fully and unlawful1y having in his pos
session, and under his control, the above
number of chickens, the same unlawful
ly shipped by a common carrier and
therefore oontraband.
The charge was heard in the municipal
court and on Sept. IL the magistrate held
McGregor to answer to any indictment
that might be preferred against him
In default of bail the relator was given
into the custody of the sheriff.
In passing upon the writ of habeas cor
pus sued out to secure McGregor's re-
lease, Judge Kelly handles the matter in
an exhaustive manner. In his memo
randum he says in part:
1T is claimed by REALTORS counsel that
the complaint does not state facts suf-
feient to continue q public offense. In
this counsel is mis- taken. 1t is unlawful
under the statute to have in ones pos
session at any time game such as is de-
unlawfully shipped by common CARRIER
The g1st Of this complaint is the wrong
full shipment Of the game and the subse-
quent alleged possession thereof by the
relator
Council also contends that the testi-
mony at the examination fails to sustain
the position Of the committing magis-
trate. This raises a more difficult ques-
ton and requires a close eXaminat ton of
the statute in connection with the facts
in this case. l treat this case as
one where the relator held actual pos
session Of the game. This brings me to
the main question, Does the evidence
prove or tend sufficiently to prove an un-
lawful shipment Of the birds? The closed
season is thus defined IN the law: Sec
ton 10-It shall be unlawful and IS pro-
hioited 10 catch kill or have in pos
session or ship any prairie chick
en- or pinnated grouse between
of September Following In other words,
the months Of September and October is
the open season. 1t Will be noticed that
these birds We're received at st. Paul
1.-THE same section provides further:
The sale, exposing for sale, having in
possession with intent to sell, or the
shipment to any person, either within or
without the state by common or private
carrier, Of any prairie chicken
" is hereby prohibited and made
unlawful 1t IS not pretended that this
relator had in his possession these birds
for the purpose OF salo or of exposing
them for sale.
''rFhe question remains. were they ship
ped to him within the meaning of the
statute? This law, It seems TO rne, is in
tended to prohibit shipments under what
ever guise they may be made. but in
commercial sense. It does not make It
unlawful for person during the open
season to kill birds and have them trans
ported or shipped with himself, over a
passenger railway. Nor can l see any
violation of the law In such case, simply
because the birds are placed in a sacf.
and put in charge Of the baggage master
by checking any more than It would be
q violation II they were tied 10 q string
and hung up in the baggage car. In
either case they would be under such
circumstances carried as part Of the par
apheTna1fa of the traveller. Any differ
ent construction leads to a patent alb
surdity.
when the legislature makes certain
months during which game Nigh. be taxi
en- or killed lawfully 1t die no intend at
the same tin to sJrFouRd lie hl1der
with such restrictions as TO deprive him
pra cticaily OF the fruits Of his sport. be-
cause the statute forh!ds tho slsiHalent
the state. by conlnipii or Rrivafe carrier
such game cannot h&ve then; copvaged or