February 34, 1881.] 



FOREST AND STREAM. 



69 



WAS IT A WITCH ? 



AS a boy no stories fascinated me so much as those that 

 told of witches and fairies roaming through the green 

 forest under the form of deer, and long after the illusion of 

 fairy-land had been dispelled I listened in wonder to the hun- 

 ters who told me of invulnerable deer supposed by them to 

 he witches. Few game localities indeed are without such tra- 

 ditions. Now I am not going to emulate Munchausen, but I 

 crave a short space to record a very singular case of impreg- 



Last summer l was enjoying the amenities of a. mountain 

 resort in n neighborhood frequented by deer. 



Through the kindness of friends living near by 1 was en- 

 abled to indulge my fondness for the chase. To" be brief in 

 detail, one rainy day found me stationed at a runway On top 

 of a long ridge. The deer were to he driven by dogs. Let 

 no arrogant still-hunter sneer, for I must tell him that if he 

 hits a deer Hying through the red brush in September he will 

 have to do better work than ever he learned at still-hunting 

 in open woods. At my side stood Jim B. Jim is a little 

 deaf, and only watched to see me shoot, so he. said at least. 



Nevertheless Jim carried across his shoulder his well-be- 

 loved "Aunt Hannah." "Aunt Hannah" was a remarkable 

 specimen; she was about six feet, tall, and in her capacious 

 double-stomach she carried an immense quantity of powder 

 and buckshot. Jim said she was perfectly safe, hut death to 

 deer. 



A few minutes brought the welcome cry of the pacl<, and 

 in an instant I heard the brush cracking as I had never 

 heard it before. A five-prong buck rushed heedlessly toward 

 us. It seemed to me auother bound would firing about a col- 

 lision, but before 1 could raise my gun "Aunt Hannah" burst 

 forth with a roar like the bolts of Jove. 



The buck turned at right, angles, and I fired twice. "Did 

 wo kill him ?" said Jim. "Yes;" I Baid, "he dropped in that 

 brush." Could I but paint the painful disgust depicled on 

 Jim's face when we discovered that the buck had not drop- 

 ped. "If I had only waited a second," said he, "he would 

 have lumped Tight into old Hannah's mouth." One of my 

 shots'was too low, the other should have hit. No trace of 

 Jim's buckshot could be found, and I think they are still 

 traveling through illimitable space. Jim, however, expects 

 to recover them when the deer is killed. 



Not more than a week later I stood upon the same spot. 

 Being alone I was sure of game. Imagine rfly sui prise when 

 I saw the same identical buck rushing through the brush 

 again. I ran up the path to head him, hut back he came and 

 almost iumped on the spot where I had been standing. Get- 

 ting in range as quickly as possible I fired twice with all the 

 deliberation of which I was master. What a pang I felt when 

 I saw him go oil unharmed. This strange beast then pro- 

 ceeded to exhibit himself to three other watchers, all old hun- 

 ters. 



He ran back and forth through the stands like a frolicsome 

 boy at play, and wound np his fun by driving off the dogs. 

 I almost swore never to shoot at another deer, and nursing 

 my chagrin I tied from the mountains. Now the denoue- 

 ment. A resident sportsman informs me by lclier (and 

 greatly to my consolation) that five d fferont hunters have 

 stood in my tracks and missed that old buck (undoubtedly Ihe 

 same). Moreover, he continues to offer ah watchers a "shot, 

 and winds tip the sport by driving oil the dogs. I need 

 scarcely add that this strange animal is now fully credited 

 with being a witch. In my experience as well as that of all 

 the local hunters nothing has ever been seen so nearly ap- 

 proaching the antics of a witch. p 'amoke. 



A SOUTH CAROLINA BESOBT. 



TTE birds south of Chester, S. C, have not suffered 

 much during this cold winter. We found them quite 

 plen y about there, and also at Summerville, 22 miles north 

 of C utrleston on the South Carolina Bailroad. If any of our 

 frien Is are near this point they can be sure of good sport, 

 ard if fortunate enough to obtain board with Dr. White, near 

 the depot, will have the best of fare and a comfortable home 

 at reasonable prices. Woodcock, snipe and quail in season 

 can be found within two miles of his house, and deer and 

 wi d turkey within five miles. Never shall 1 forget the drives 

 thiough the pine woods in the deep, worn road filled with 

 wa' er, under the drooping branches that shut out the sun- 

 light, and made a welcome shade. We went six miles to 

 Goose Creek, one of the branches of the Ashley liiver. Here 

 the Major, who had come all the way from Chester, had 

 promised to show us most magnificent snipe and woodcock 

 ground. True to his word lie did so, and the welcome 

 "Mark!" and report of the gun greeted our cars in less than 

 tenminut.es after disposing of our lunch under a big live oak. 

 On our way back he told us to look out for deer and turkey, 

 and presently a large buck star ed in front of our most en- 

 thusiastic sportsman, who had prepared himself for just such 

 game by loading several shells with buckshot. When Lis 

 attention was called to the buck, he says, he attempted tochaige 

 his shell, but from his description of the animal afterward we 

 all doubted him, hut believe he had a had attack of buck 

 fever. He was willing to bet or swear that it was all white, 

 weighed three hundred pounds and had-a tail as long as his 

 arm. The next day we returned to the same vicinity and 

 engaged some drivers to "jump" deerfor us, and in less than 

 one hour after the dogs were let loose tho same gentleman 

 shot his first deer, weighing about 120 lbs., of a dun brown 

 color and with a tail about eight Inches long. As the darkies 

 express it, you can most always find them here, especially 

 if your dogs roll over in going into the woods— " Deer, 

 shuah." You cannot always, however, depend on the game 

 by the name the natives give it. We inquired if there were 

 any woodcock about and were told that there were "oodles" 

 of "them. "Where did yon see them?" "In the woods, 

 mostly up in the trees." They know the tufted woodpecker 

 here as the woodcock, and you must get up soon to find 

 them. W. 

 , — -»— « 



Indians Steal Ducks' Eggs— Carson, Nov., Feb. S.— 

 Game has been very scarce for months, in fact there has been 

 Been but a straggling flock of ducks (our principal shooting) 

 all winter. Now we have plenty, indeed too much, of wa'er, 

 and all the feeding resorts are overflowing. However, by the 

 1st of March the spring flight will be along, when we antici- 

 pate some good bags. Were it not for the miserable and de- 

 structive brutes of Indians this would he a fine Hold for duck 

 shootingintho early fall, but the Indians bucks, squaws 

 and papooses — seek the nests of the birds and rob them of all 

 the eggs they contain, thus destroying what would otherwise 

 eventually be thousands of young ducks. And we ore nn- 

 able to prevent this daughter, for tholndlttii iathli country 

 is a prlfileged tHunt/S(ft it (at (A | ; 8 1 opfJMttei}. P|vad. 



A TEST GAME LAW DECISION. 



"lUK PEOPLE TS. MAGXBR." 



A CTION was brougktagainst one Magner, a Chicago game 

 CX dealer, in January, 1380, for selling quail out of season, 

 and judgment obtained in the Justice's Court, and in the 

 Criminal Court, of Cook County. Upon appeal the case was 

 taken to to the Supreme Court of Illinois, last. March, and 

 ili, decision" of that, court has just been handed down sustain- 

 ing the decisions of the lower courts. 



The Magner case was an important one because it had pur- 

 posely been made a test of the constitutionality of the Illi- 

 nois game law. The published report of the case states that 

 by an agreed statement of facts the following points were 

 covered : 



"In case No. 1 , the defendant bought and sold quail, during 

 the prohibi'ed season. The entire transaction taking place 

 within tho Slate, aud confined to citizens of Illinois. In case 

 No. 2, defendant bought one box of quail in the State of 

 Kansas during Ihe open season, had said case shipped to Chi- 

 cago, and sold the same during the prohibited season to a 

 citizen of Illinois. Case No. B, same as No 2, except that de- 

 fendant, sold the package to a citizen of the Stnte of New 

 York. Case No. 10. Defendant sold quail at Chicago dur- 

 ing prohibited season to citizen of New York, said quail hav- 

 ing been killed in Kansas, and shipped to defendant in Chi- 

 cago. These three cases were so framed to test the authority 

 of the State to pass the law. Cases No. 3, 4, 7 and 9 con 

 tained the same statement of facts, except that, the game was 

 purchased in Kansas during the close or prohibited season by 

 the laws of that State, and raised the question of the right of 

 a ci izen to deal in goods, when the law of the place of con- 

 tract has forbidden such dealings. Cases No. (J, 8 and f) rep- 

 resented similar facts, except that goods were sold in smaller 

 parcels than original shipment, thereby raising the question, 

 that as the original packages had been broken, the quail had 

 become "merged in the mass of property of the. State," and 

 the State could then regulate its sale ; even if it could not 

 regu'ate Inter-State commerce. 



" The argument upon the part of the State was briefed to 

 evidence, the following propositions, viz. : First. That game 

 of all kinds is the property of the State, and that the Slate 

 has full power to protect its property by statute even to the 

 affecting of commercial relations between the various States, 

 and that such law will not be unconstitutional, unless the 

 opposition between it and the constitution be clear and plain. 

 Second. Showing that the highest courts in the Stales of 

 New York and M ssouri have decided a similar law to he 

 constitutional. Third. That the power of Congress, under 

 the Constitution, to regulate commerce among the several 

 States, is not exclusive. Fourth. That Congress having for 

 over a century failed to pass a game law, it may reasonably 

 be inferred that a " national rule" is not required, and in 

 such a case the State may act. Fifth. That the States hav- 

 ing always protected fish and game, the acquiescence of the 

 Federal Government admits their fights so to do. Sixth. 

 That the States can better control Ibis question than Con- 

 gress. Seventh. That Congress has no power over Ihe sub- 

 ject. Eighth. That this law can be upheld under the police 

 power of the State. Niuth. That goods contraband kx 

 l„d cmdmclit cannot be the subject, of a legal contract 

 elsewhere. Tenth. That the comity of States re- 

 quires each to assist the other in preserving its game. 

 Eleventh. That game and fish are of great importance to 

 the country. Twelfth. That the quid were bought in 

 Kansas when such purchase was then and there prohibited, 

 should not be received as a defense in the courts of this 

 State. Thirteenth. That the practice has become general 

 by which courts of justice examine into and enforce contracts 

 mad ■ in other Slates, and carry them into effect, according 

 to the laws of the place where the transaction took its rise ; 

 subject only to the exception that such contract should not 

 either in itself, or in the means used to give if effect, work 

 an injury to the inhabitants of the country where it is at- 

 tempted to be enforced. Fourteenth. That even if another 

 State was bound to permit the sale of the subject of contract 

 in the hands of the importer, it is not bound to furnish a 

 market for it, nor ubstain from the passage of any law which 

 it may deem necessary to guard the health or property of its 

 citizens, although the effects of such legislation might dis- 

 courage importation." 



The opinion rendered by the Supreme Court sustains these 

 arguments. It is so comprehensive and so important that 

 we publish it, entire as printed in a Chicago paper : 

 State otf Illinois, ) 



Supreme Court, .■ 



Northern Grand Division.) 



At a Supreme Court, begun and held at Ottawa, on Tues- 

 dav, the seventh day of September, iu the year of our Lord 

 one thousand eight hundred and eighty, within and for the 

 Northern Grand Division of the State of Illinois. 



Present: Hon. T. Lyle Dickey, chief-justice; Pinkneyll. 

 Walker, justice: Benj. B. Sheldon, justice; Alfred M. Craig, 

 justice; John Seliolfield, justice: John M. Scott, justice; John 

 H. Mulkey, justice; James It Edsall, attorney general; Bu- 

 fus C. Stevens, f-hciilT; Evcrell F. Dulton, clerk. 



Be it remembered, that afterward, to wit: On the Ihird 

 day of February, A, D. 1881, the opinion of the Court was 

 filed in the clerk's office of said court in words and figures fol- 

 lowing, to Wit: 



James Magner, vs. I Appeal from Crirr. 



The People of the State of Illinois. - nal Court of Cook 

 ) ' County. 



Opinion by Scuolfield, J. : 



The grounds upon which it is argued the judgment below 

 should be reversed, are: 



1st. Because 1 he statute, does not. condemn the possession 

 or sale of quail taken and killed beyond the limits of the 

 State, which is subsequently shipped into the State for sale. 



2d. Because, if the statute shall be held to condemn such 

 possession and sale, then in its enactment, so much of § 13, 

 Art. 4, of the Slate Constitution as requires that, the subject 

 of every act shall be expressed in its title, was disregarded, 

 anil hence it, is not law. 



3d. Because, if the statute is free of all other objections, 

 but. shall be held to condemn the possession and sale of 

 quail taken and killed beyond the limits of the State, it is 

 void, and not la.w, for the reason that it is in contravention 

 of the 3d clause of § 8, of Art. 1 of the Constitution of the 

 United Slates, which confers upon Congress power to regu^ 

 iai. eoi-iML-vce with the foreign pillions and among the. mv~ 



fl I' 



,., . ,,, ,, , in ,! [; . ,„,), , . ,■ tod 



1st. The first section of the statute under consideration 

 makes it unlawful for any person to hunt, pursue, kill or 

 trap, net or ensnare, or otherwise destroy any quail or ruffed 

 grouse between the 1st day of January and the 1st day of 

 October of each and every year. 



The second section makes it unlawful for any person to 

 buy, sell, or have in possession, any of the wild fowls, birds, 

 etc., mentioned in section one, at any time when the trap- 

 pine, netting or ensnaring of such wild fowls, birds, etc., 

 shall be unlawful, which shall have been entrapped, netted 

 or ensnared contrary to the provisions of the Act. This is 

 manifestly but equivalent to saying I hat if shall be unlawful 

 to buy, sell or have iu possession, between the 1st. day of Jan- 

 uary and Iho 1st day of October, in each aud every year, any 

 of the wild fowls, birds, etc., specified in section one, which 

 shall have been entrapped, netted or ensnared contrary to the 

 provisions of that section. Very clearly this section has ref- 

 erence only to wild fowls, bird", etc., within this State. 



But. section six is more comprehensive in its language than 

 cither section one or section two. it, is : "No person tir per- 

 sons shall sell or expose for sale, or have in his or their pos- 

 session, for the purpose of selling or exposing for sale, any 

 of the animals, wild fowls or birds mentioned in section one 

 of this act, after the expiration of five days next succeeding 

 the first day of the period in which it shall he unlawful to 

 kill, trap or ensnare such animals, wild fowls or birds," etc. 

 No exception whatever is made with reference to the time 

 when or the place where such " animals, wild fowls orbirds " 

 shall have been killed, trapped or ensnared ; but the language, 

 as plainly as language can, includes all animals, wild fowls 

 and birds. 



That this was intended, is further manifest from the lan- 

 guage of the seventh section, which declares : " The provis- 

 ions of this act shall not be construed as applicable to any 

 express company, or «ommon carrier, in whose possession any 

 of the animals, 'wild fowls or birds herein mentioned shall 

 come in the regular course of their business for transporta- 

 tion while they are iu transit through this State from any 

 place without this State where the killing of said animals, 

 wild fowls or birds shall ho lawful," thus, in effect, declaring 

 that but for this qualification the provisions of the act, would 

 be applicable to such express companies and common car- 

 riers. 



But, it is argued, this cannot be the correct construction, 

 because such a prohibition does not tend to protect, the game 

 of this State. To this there seems to he two answers. Firsl , 

 the language is clear and free of ambiguity, and in such case 

 there is, no room for construction. The lauguage must bo 

 held to mean just what it, says. Second, it cannot be said to 

 be within judicial cognizance that, such a prohibition docs not 

 tend to protect, the game of this State. It beingconceded, as 

 it tacitly is, bv the argument, that preventing the entrapping, 

 netting, ensnaring, etc., of wild fowls, birds, etc., during 

 certain seasons of the year tends to the protection of wild 

 fowls, birds, etc , we tliink it obvious that the prohibition of 

 all possession and sales of such wild fowls or birds, during 

 the prohibited seasons, would tend to their protection in ex- 

 eluding the opportunity for the evasion of such law, by clan- 

 destinely taking them beyond the State and afterward bring- 

 ing them into the State for sale, or by other subterfuges aud 

 evasions. 



It Is quite true that the mere act of allowiug a quail netted 

 iu Kansas to be sold here does not injure or in anywise affect 

 the game h< re, but a law which renders all sales and all pos- 

 session unlawful will more ccrlainly prevent any possession 

 or any sale of the game within the Slate than will a, law al- 

 lowing possession and sales here of the game taken in other 

 States" This is but one of many instances to be found in tho 

 law, where acts, whichin and of themselves alone are harmless 

 enough, are condsmned because of the facility they otherwise 

 offer for a cover or disguise for the doing of that which is 

 harmful. 



A similar objection to the construction of the Act, it 

 seems, was raised in Whitehead vs. Sml there (2d C. P. I). 

 553), 21 si, Moakf.jS: but Lord Coleridge, C. J., said: "I 

 am of opinion that I hat argument is not well founded. II is 

 said, it. would be a wrong thing for the legislature of the 

 United Kingdom to interfere with the rights of foreigners to 

 kill birds. But it may well be that tho true and only neato 

 of protecting British wild fowl from indiscriminate slaughter, 

 as well as of protecting other British interests, is by interfer- 

 ing iudirectlv with the proceedings of foreign persons. The 

 object is to prevent British wild fowl from being improperly 

 killed aud sold under pretense of their being imported 

 from abroad." In that case, the wild fowl was shown to 

 have been of a consignment of dead plovers, received by a 

 poulterer from Holland, and it was held that its sale was pro- 

 hibited by general language, like that of the section under 

 consideration, prohibiting all sales of such fowls. 



In Phelps vs. Baccy, 80 N. Y. 10, the language of the 

 statute, was substantially the same as that of the 0th section. 

 The defense there was that the bird— a quail— had been 

 killed in the proper season, but had been kept, by a process 

 for preserving game, until after the season expired, and then 

 offered lor sale. The Court said: "The penalty is de- 

 nounced auaiust the selling or possession after that time, irre- 

 spective of the time or place of killing. The additional fact 

 alleged that the defendant had invented a process of keeping 

 game from one lawful period to another, is not provided for 

 in the Act, and is immaterial." 



2d. The title of the Act is " An Act to revise and consoli- 

 date the several nets relating to the protection of game, and 

 for the protection of deer, wild fowl, and birds." We think 

 this fully expresses the subject of the Act. From the views 

 expressed under the first point, it follows that wo arc of 

 opinion that the prevention of the possession and sale of all 

 game during tho periods designed to protect the same iu this 

 Slate from being taken or killed, may reasonably he regarded 

 as a 1 1 ica ns necessary to the effectual protection of the game 

 of firs State. It was unnecessary to stale the mode by which 

 the game was to be protected, or the reasons which influenced 

 the legislature in making the enactment. 



Fuller vs. The People, i)2 Ills. 182. Poiple er. ul. vs. 

 Lowenthal et. bL, 93d Id. 101, Johnson vs. The People, 

 83d Id. 431. 



3d. No one has a property in the anim ds and fowls de- 

 nominated "game" until they are reduced to possession. 2d 

 Kent's Corn's (8th Ed.) 410 et. seq, COOley on Torts, 435. 

 While they are untamed and a I. large, tho ownership is said 

 io i,e in the Sovereign author!! v- in Great Britain, the King 

 3d Blackstonc'8 Corn's (Sbarewaod's Kd) 400-10: but with 

 us in the people of ihe Slate. The policy of the common law 

 was to legulate and control flic hunting and killing of game, 

 for ilK better preservation ; and such regulation arid control, 

 according to Blacksoue, belong la ihe police powers of the 

 governmen*. 4'h Corns | Bhai nwood : !M. ) 1"4. 



So IV rib we lire nvnr-; ii (jflfl DBTOl h'-en I'm'- ' / '-'''."' 



