THE GAME BREEDER " 141 



A COURT'S OPINION. 



In the case of People vs. Buffalo Fish criminal law and permit an accused per- 

 Co., 164 N. Y. 93, 52 L. R. A. 803, the son to testify in his own behalf, the 

 Court of Appeals of New York was proposition was for a long time resisted 

 called up to pass on the validity of a by similar arguments. It was said that 

 statute "forbidding any person to * * * the temptation to swear falsely under 

 be possessed of certain fish during the such circumstances was so great that 

 close season therein prescribed." The crime could never be punished if the ac- 

 defendants bought fish in Canada to sell cused was permitted to testify in his own 

 in New York and were charged with behalf, whereas experience has shown 

 being possessed of them in New York, that a person on trial for a penal offense 

 The court held if the law covered the very rarely, if ever, helps his case by 

 case and made criminal "being possessed falsehood. Indeed, it may be safely as- 

 of imported fish," it was unconstitutional serted that the new law, instead of 

 and void because it was a violation of the thwarting justice, as anticipated, has 

 interstate commerce provisions of the been a very great aid in the enforcement 

 Federal Constitution. In deciding the of the criminal law. There is not the 

 case, Judge O'Brien, speaking for the slightest reason for giving a strained and 

 court, said : "An act to protect game or unnatural construction to the statute in 

 to promote health may be so framed and question in order to meet such an imag- 

 applied as to restrict and regulate traffic inary danger. The possession of the fish 

 in some article of commerce, and when or game at the forbidden season, within 

 it does it is just as obnoxious as if passed this State, is prima facie evidence that 

 for that purpose under a title expressing the possessor has violated the law, and 

 that very intent. * * * " "But it is the burden is then cast upon him of prov- 

 argued that, unless the statute is con- ing facts to show that the possession was 

 strued to inhibit the possession during lawful. If he has no better defense than 

 the closed season of fish imported from one based on falsehood, it will be entirely 

 a foreign country, it cannot be enforced, safe to trust to the power of cross-exam- 

 but will be evaded by false swearing, ination and the intelligence of the court 

 This means that if the summer-hotel and jury to detect and expose it, as in 

 keeper, the owner of the private pond, offenses of much greater magnitude, 

 and the foreign importer, under the cir- * * * " "The main proposition, after 

 cumstances stated, are allowed to escape, all, in support of the plaintiff's conten- 

 then someone else may falsely pretend tion, is based more upon policy and ex- 

 that his possession of fish during the close pediency than upon law. When fairly 

 season was obtained in a similar manner, stated, it is this : A statute to protect 

 when in fact he is really guilty of violat- fish and game within the State does not 

 ing the law by procuring them from the protect unless it inhibits the importation 

 waters of the state. This argument of fish and game from a foreign ccantry 

 seems to be based upon the notion that or another State. When this proposition 

 unless the innocent are convicted the is carefully examined, it will be found 

 guilty may escape. It assumes that in to be not only without any foundation in 

 the interpretation of a penal statute, such fact or in experience, but, when applied 

 a remote danger must be anticipated and to cases like the one in hand, the mani* 

 guarded against. I think it puts rather fest tendency is to defeat the very object 

 too much faith in the potency of perjury of the law, which, of course, must be 

 as a defense to an honest claim, and too assumed to be protection. The individual 

 little in the capacity of courts and juries who is permitted to hunt and fish in Can- 

 to distinguish truth from falsehood, ada or in another State, and bringwith 

 When it was proposed to change the him here the fruits of his labor, will do 



