Putnam patriot., 1915-06-04
DEER CASE
Judge Greene SuStains Plaintiffs De.
 Hurrer
Finds 1t IS Not Crime to have Deer
 Carcass in Ones Possession

Finds it is Not Crime to have Deer
 Carcass in Ones Possession Judge Gardiner Greene of the Sl. perior court has handed down de. eision sustaining the demurrer of the i plaintiff in the case of Charles l.. ! rerrey, Putnam lawyer, vs John NJ Champion, state superintendent of fisheries and game. The. case arose
 over the attempt of County Game
 Warden Arthur Day to arrest Mir. Toffey for having in his possession the carcass of a deer which he found in the highway and refusing to deliver 1t to the officer upon demand. Day tel ephoned Superintendent Champion at
 New Haven that Torrey had the car
 cass of a deer in his possession illegally
 and Champion told Day to arrest Tor
 rey unless he would give 1t up. A scuflle ensued but the officer finally
 gave up the attempt and left. Sub.
 sequently asrequest fer warrant of
 arrest was made to Prosecuting At l torney Arthur S. Macdonald of Tut
 nam but he refused stating that as far
 as he could ascertain no crime had been committed bYI MT. Torrey. Tor.
 rey broughtssnit against Mir. Cfomp- l ton for damages. Defendent demurred. l The demurrer was oYerruled and he 1 filed an answer Plaintiff demurred 1 to the answer and 1t Is this demurrer
 that Judge Greene has sustained. The
 case has ,created interest throughout the state and in NJ massachusetts, and | Rhode Island and Mir. Forrey has re- l ceived letters from various places as to the outcome of the matter. Judge Greene finds that it Is not criminal act to have the carcass of deer In ones possession and in the decision
 the case is quite fully set forth. The decision is as follows:
 Memorandum of Decision of Demurrer
 10 Answer
 The complaint alleges thnt defend
 ant ordered, directed and advised Day
 to assault the plaintiff and fefeioly take plaintiffs body, and that Day, under said order, committed assault l aud battery upon Che plaintiff.
 The answer, in second defense, snys that defendant was superintend, ent of Fisheries and Game, and that | Day, as game warden, had power,
 without warrant, sto arrest for viola. 1 ton of any Inv relating to fish and game; that Day teiephOned defend.
 ant that plsintifi had in his possess ion the body of a deer in violation of the laws relating to fish and game,
 and had refused to deliver said body to said Day, and Dny asked defendants
 advice what to do that defendant
 thereupon advised Day to arrest plain 1 tiff ii he refused to give up the body, and gave Day no other orders, direct l ions or advice; that defendant has no Knowledge whether or not Day as
 saulted plaintiff
 The plaintiff demurrs 10 the second defense on three grounds: first, that l Days communication to defendant did not state facts showing ,what vio- lalion of the fish and game laws had
 been committed, or that any had been committed, or how plaintiff got the
 body, or why plaintiff might not law | fully keep the body, or why he was bound to give it 10 Day on demand.
 The plaintiff says that, therefore, de- fendant was not justified in advising
 Day to arrest the plaintiff, without warrant, if the plaintiff did not sur
 render the carcass to Day.
 The second ground is that the pos session of the carcass of deer by plaintiff, coupled with Days state
 ment that he possessed it in violation
 of the fish and game laws, did not jus. tify defendant in advising Day 10 ar rest plaintiff if he would not surrender the carcass.
 The third ground is that it is not al- leged and does not appear that plain tifl's possession of the carcass was in violation of the fish and me;iaws, or
 anywlse unlawful, or that plaintiff had not right to retain the carcass
 against Days demand, and therefore
 defendant was not justified in advising Day to arrest plaintiff if plaintiff
 would not surrender the carcass. The defendants advice to Day was equivalent to an order The snperin
 tendent appoints the game wardens, ! and may remove them for cau1e. Acts
 1913, oh. 22S, Sec. ,, 6.
 Under such relation, game war
 den would naturally defer to and fol- low the advice of the superintendent
 as to the performance of his duties. In this case, the game warden sought the superintendent's advice as to what his duty was, received the advice, and followed 1t. The act was within the scope of the duties of both the defe nd ant and Day. The arrest Is really the anf af fba defqnHHnt
 The defendant suggests that If he m qde an error, he should not be held responsible, and cites McVeigh V. Ripley, 77 Conn, l37. This case treats of Judicial officers, and has no bearing on the case of an executive officer. If the defendant has ordered an unlaw-
 fn arrest, he Is responsible In da- mages
 The defendant says that he did not order an assault. 1 man is liable for the natural consequences of his acts. An officer ordered to make an arrest Is ordered to use such violence IS may be necessary to make 1t.
 The situation as 1t appears on the
 pieadlngs IS that Day telephoned the defendant that plaintiff had a deers carcass in his possession contrary to the fish and game jaws, and refused to surrender it to Day, and asked defend. ant what he shonld do. Defennant
 advised Day to arrest plaintiff if he re. fused to give up the carcass, and gave no other orders, directions, or advice. The answer omits any allegation that plaintiff had carcass in viola | ton of the fish and game laws, or of