Opinion
November 16, 1910.
John K. Ward, for the appellant.
John P. Kellas, for the respondent.
The action is to recover a penalty for permitting a dog of the breed commonly used for hunting deer to run at large in a deer inhabited forest in the Adirondack park. Section 9 of chapter 20 of the Laws of 1900 (as amd. by Laws of 1901, chap. 545), under which it is claimed the penalty was incurred, provides that "dogs of the breed commonly used for hunting deer, or dogs that are trained to or will pursue deer, shall not be permitted by the owner or persons harboring the same to run at large in or to be taken in the forest inhabited by deer or kept or possessed in the Adirondack park." It was proved by the defendant that the dog which was allowed to run at large in a forest inhabited by deer was what was called a Pennsylvania foxhound, and that it was not trained to and would not pursue deer. The proof on the part of the plaintiff tended to show that it was of the breed commonly used for hunting deer, and that it actually did pursue deer on the occasion in question. The defendant was using the dog to hunt foxes and there was no dispute but what he was running at large in the woods.
The main controversy submitted to the jury was whether or not the dog in question was of the breed commonly used in hunting deer, and the learned trial court, by a very fair and impartial charge, explained and submitted that question to the jury. In the course of his charge, however, he said that intent to violate the statute was an element that must be proved to recover a penalty under the statute in question. At the close of the charge an exception was taken to such instruction and the plaintiff's counsel asked the court to further charge that such intent might be drawn from the circumstances and need not be specifically proven. The court modified the charge in this regard, apparently to the satisfaction of plaintiff's counsel. Thereupon the defendant's counsel requested the court to further charge that the acts must be such as to show that there was an intent to violate the law, or to perform an act prohibited by law, and the court so charged to which the plaintiff excepted.
We are of opinion the learned court fell into error in charging the request of either of the counsel to the effect that intent to violate was a necessary element of violation or incurring of the penalty. In an action for a penalty for the doing of a prohibited act the question of defendant's intent in doing the act is immaterial. ( People v. Snyder, 90 App. Div. 422.) One can commit a crime even, like selling milk below the standard prescribed by law, without knowing that it is below the standard, and without intending to violate the law. ( People v. Kibler, 106 N.Y. 321.)
The court also charged, at the request of defendant's counsel, that the defendant had a legal right to pursue, with the dog in question, foxes on the private lands of his employer, by his direction, without incurring any penalty in so doing, and counsel strenuously maintains that such charge was correct.
The defendant was superintendent of a very large private park in the Adirondacks. If the dog was of the breed commonly used in hunting deer the defendant had no right to let him run at large on his employer's land or anywhere else in the Adirondack preserve. While the owner of a private park owns his land and has been given great privileges by the Legislature with respect to fishing and hunting thereon, the wild game roaming over it belongs to the People of the State and they have the right, for the purpose of protecting game in general, to make proper regulations as to time and manner of hunting and killing. If the dog was of the breed commonly used in hunting deer the defendant had no more right to let him loose on the preserve of his employer than he had to kill out of season the deer which happened to be on the lands of his employer. As the statute stood at the time of the alleged violation, if the dog was not of the breed commonly used for hunting deer, or was one of another breed not trained to or which would not pursue deer, the defendant had the right to hunt foxes with him by direction of his employer or otherwise. In the light of the main charge of the court the request was doubtless understood by him to refer only to the right of the defendant to hunt foxes with a dog which would not pursue deer. The language of the request, however, is so broad that the jury might have understood the instruction to be that the defendant had the right at the direction of his employer to hunt foxes with the particular dog in question upon his employer's lands whether he was of the kind commonly used in hunting deer or not, and we cannot say that they did not so interpret it.
It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to the appellant to abide event.