State v. Skolfield , 86 Me. 149 ( 1893 )

Peters, C. J.

By R. S., c. 40, § 49, it is provided that no person shall sell "any trout” during close time, with a certain penalty therefor. The complaint in this case avers that the respondent, " did sell trout,” to one Eben Newman within the period of close time. Certain objections are urged against the validity of the complaint.

It is contended that the complaint is too general in its description of the quantity of trout sold. But the statute is as general as are the words of the complaint. This objection cannot prevail. State v. Hadlock, 43 Maine, 282; Com. v. Ryan, 9 Gray, 137.

It is objected that the complaint is defective in that it does not aver that the sale did not come within certain other statutes and sections which permit the taking and selling of trout within close time under certain conditions and restrictions. The answer to this objection is that any justification of this kind would be a matter of defense. It is necessary to aver against any exceptions only when such exceptions are found in the enacting clause of the section upon which the complaint is based. There are no exceptions whatever in the section of the statute which establishes the present offense. State v. Gurney, 37 Maine, 149 ; State v. Boyington, 56 Maine, 512.

It is further contended that the omission of the word unlawfully from the charging portion of the complaint is a fatal defect. This is a more debatable point perhaps than the others, and still we think the complaint must be regarded as good even in this respect. The section gives no intimation of any lawful selling of trout of any kind during close time. The word would not obviate the necessity of negativing any exceptions in the section had there been any init. Com. v. Byrnes, 126 Mass. 248. The word unlawfully need not be used when the offense is one at common law. It is essential to insert it in a complaint grounded on a statute which itself uses the word as a part of the description of the offense. The allegation that the offense was committed against the statute is not an equivalent, and does not supply the deficiency, if such exists. United States v. Smith, 2 Mason, 148 ; 1 Bish. Cr. Proc. § 264, and cases. Mr. Cliitty and Mr. Bishop advise the use of the word in all cases as it excludes all legal cause of excuse for the offense. The weight of authority is, however, that the word is needless where it is manifest that the statute in its general terms declares an unlawful offense. Such is the statute affecting the present case. 1 Chitty Crim. Law, 241. Bish. Cr. Proc. § 503. Bou. Law Dic. word unlawful.

Exceptions overruled.