The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-04-21

Laws of State-Shipment Must Be
Actually Entered Upon and Not
Merely Contemplated to Constitute
an Evasion.
Judge r. w. Archibald OF the United
States federal court Of the Middle PENN
sylvanla district, on Saturday filed an
opinion in the celebrated Blooming
Grove game case, In which seven prom
inent men of New York and New Jer-
sey were charged with violation OF the
Lacey bill, recent enactment of con-
gress to prohibit the taking of killed
or trapped game outside Of the state.
The judges decision sets aside the in
tlictment on the ground that the de-
PENDANTS did not complete an offense
against the statute.
The defendants were A. S. Smith. Of
New York: John S. Kusser and Ben
jamin Kusser, of Trenton; Robert Post
and Andrew ]. Post, of Jersey City;
Thomas ]. Barry. of New York, and II.
II. Breintnall, of Newark October 81,
1901. they were coming from Blooming
Grove park in Pike county with satch-
els containing a hundred or more
pheasants and box enclosing the car
cass of deer, when DR.. Kobfus, chief
OF the Pennsylvania game commission
Intercepted them at the railroad sta
tion and placed them under arrest, on
the charge Of violating the Lacey act.
in having prepared for shipment with
intent to ship outside of the state pack
,...., ,tr =
birds, killed in violation of local game
laws. The Lacey act provides that all
game intended for shipment from one
state to another shall be marked SO
that the contents of the package are
clearly and readily ascertainable. The
defendants had the game concealed in
satchels and trunks, bearing no indi-
cation whatever of their contents.
WAS ARGUED HERE.
The case was argued at the Scranton
session Of the United States court on
March last. The case in which N. S.
Smith, president of the Blooming Grove
Park association. was defendant. was
made the test case. General Fitzpatrick,
of lcaston, represented the defendants
and United States Attorney McCarrell
and Congressman John S. Wise, of New
York, argued for the prosecution. The
opinion of Judge Archibald is appended:
This indictment is framed undo: the third and
fourth sections OF the Act OF May %, 1900, u
stat at Large, ISL, chap. J53. commonly known
as the Lacey Law Aside from the question OF
The validity Of that statute or the exact pnrpose
TO he attained bv il /, is 10 no observed ns
matter which 1;cs on Tho surfaco tb,t tho pon,c
that is there prohibited from being Skinned from
one State or Territory 10 another is that and
only that which has been killed in violation OF
the local law Omittinr matters of ycrbare the
Act in substance declares that If shall bc nnlov.
ful for any one TO deliver to any common carrier
or for auy common carrier TO TRANSPORT from one
State or Territory TO another. "thc dead bodies
or parts thereof of any wild animals or birds
where such animal, or birds have been killed in
violation of the laws Of the State Territory or
District in which the s;me WAS killed" As
necessary consequence of this there is no viola.
lion of the Act ,Inkss the game Skinned or sought
TO be Skinned has bern so killed and the fact
that it was is of the essence of the offence and
must he oyerrcd and provcd While the Federal
courts will no doubt take notice of the Statute
laws of the different states with rcspcct TO the
killing of game within their rc,ppctiye borders
this does not do away with the necessity for de.
clurinr as well as showing that they have in
fact been violated. II This he So thc first and
second counts of the indictment are fatally de.
fcctiye There is no aycru,nt whatever "a 70
whore the game there s,oken of was killed.
whether in PENNSYLVANIA or elsewhcre: or that
when and where killed. it was killed in violation
of the local law
TIE BALD STATEMENT ONLY.
All that we have is the bald statement
in the one count that the defendant had
prepared for shipment by interstate com
Ncrce out Of the state, certain packages OF dead
game without having them clearly marked with
The name and address OF the shipper and the Tia.
,ure of the contents, as required by the Act; und
in the other, that he had concealed the game
tnokcn of in trunks satchels, etc, without hay.
ing them so marked. with the intent to carry
them out of the state into other states in viola.
,ion OF the Act of General Assembly, of Pa ap.
prove" 'nne :: iso', ara III evasion ;ud violation M
w,s M nccessory ycn in ,nv Of These Ic,s hy
,hcn,so,ves. ,bc como ,r,y have hc,n ;nnnccuuv
killed and we must nres,imc th,t il was until il
nppcars otherwise, for nlJ ,h,, ,ye knor, il NAV
have been killed in C,nnd, nr same o,har eona,,v
;rrclcvont nIoco Win wbic,, u,. iac,s ,hargca
arc inst as consistent az thcy orc with ANYTHING
NhirI is nrohihitcd !, T. ,rno Tim, th,se counts
,ral with alleged evosions nf ,be law, which Lv
tina tcrs M the stou,o arc np;sh,h,e nm,,llv
With dircct violation of II Rnt that doe. not
aE.ct the question. Wbetbcr IL II, an evasion or n
,iolotion thot is chorgad roitbcr can cxist oy
com, tho ram. which is tho suhioct of n wns
ljil,d in Jisrog,rd NJ tho Inco, law tbn nrohiji.
lion of tbe statuto hoinr nrodic,toJ ,ho,iv unon
,h,t circumstance
Nor IL iho socond co,,nt ho,ncd ort i, this 70.
,o,,I bv tho roieronoo thar. fnund 10 tho Ict n,
1.nnor0i Assemble n, pennsy,v,,io anti,Ied. "An
Act for tbe better protection of game. etc" All