SPECIAL EVIDENCE. (>5 



however many the individual birds or animals involved in the viola- 

 tion, and this has reference more to the degree of punishment to be 

 inflicted. These schemes of punishment have not escaped attack in 

 the courts upon alleged constitutional grounds, but it ma}^ safely be 

 asserted that there is no longer any doubt that the provisions arc valid 

 and constitutional. 



In September, 1903, one Poole, of Jackson County, Minn., had in 

 his possession for purposes of sale 2,000 wild ducks, in violation of 

 the o-ame law of that State. He was indicted, tried, and convicted 

 under that section of the game law which declared that any person 

 having in his possession wnth intent to sell any wild duck should be 

 punished by a tine of not less than |I0 or more than |25, or by 

 imi)risonment for not less than 10 or more than 30 days, for each and 

 every duck so possessed. The court imposed a line of |20,000 upon 

 Poole, with the alter•nati^•e that he be imprisoned until the line w^as 

 paid, 1 )ut not longer than 200 days. From this sentence Poole appealed 

 to the supreme court of the State, urging among other grounds for 

 reversal of the judgment that the statute Avas unconstitutional, because 

 it was in violation of that part of the State constitution which pro- 

 hil)ited the infliction of excessive tines or cruel and unusual punish- 

 ments. The defendant's contention w^as overruled and the sentence of 

 the hnver court atflrmed. In disposing of the case" Chief Justice 

 Start, who wrote the opinion, remarks: 



If the- i)eiuilty were not graduated, so that the greater the offense the greater the 

 punishment, the statute would invite its own defeat. It would be absurd to punish 

 the unhiwful jiossession of 2,000 or more birds on the basis of one. * * * So, in 

 its last analysis, the fines imposed in this case are seemingly excessive, not by reason 

 of the statute l)ut l)y reason of the magnitude of the offense. * * * The fault is 

 theirs, not that of the statute. 



In a few States, where each bird or animal is made the subject of a 

 separate oflense, in oi-der to obviate the necessity of filing a separate 

 indictment or complaint for each one, it is provided that two or more 

 oflenses mav l)c charged in the same complaint, information, or indict- 

 ment; and it is further provided in Alabama, Coloi'ado, and Nebraska 

 that violations as to any number of anin)als or t)irds of the same kind 

 mav be charged in the same count and punished as a separate oflfense 

 as to each animal or bird. 



SPECIAL EVIDENCE. 



The defendant having ))een arraigned— that is, required to state 

 whether or 'not he is guilty of the charges alleged in the affidavit, 

 complaint, information, or indictment, as the case may be— and answer- 

 ino- not ouiltv, it devolves ui)on the prosecution to prove the charges by 



aState V. Toole, 100 N. W., 647. 



