State v. Turnbull , 78 Me. 392 ( 1886 )

Emery, J.

The provisions of § 43, c. 40, E. S., particularly that requiring an opening through weirs during the weekly close time, were evidently enacted for the protection of "migratory fishes.” This complaint is for omitting to keep the weir open. Section 31 of the same chapter however expressly exempts certain waters "from provisions relating to migratory fishes,” and among the waters so exempted are : " so much of the waters of the Damariscotta river as are west of the railroad bridge near Damariscotta Mills.” Section 43 therefore cannot apply to that part of the Damariscotta river so exempted.

All the acts and omissions forbidden by § 43, are not forbidden in that part of that river. They are still lawful or harmless there, however unlawful they might be in other parts of the same river. They are not mala in se, and are mala prohibida, only in one part of the river, to wit, that east of the railroad bridge. The locality of such acts or omissions, is therefore an essential element in constituting them an offence against the statute. To prove that they occurred in the Damariscotta river is not enough. They may properly occur in one part of the river. It must be proved that they occurred in the' prohibited part, to make them an offence. If the locality is an essential part of the offence itself, it is equally an essential part of the description of the offence, and should be alleged in any process charging the offence. This is not a case of a promise or excuse, which a respondent may or may not show in defence. He is not even prima facie guilty until he is shown to have done or omitted, in the forbidden part of the river.

The only statement of locality in this complaint is, "in the waters of the Damariscotta river.” The complaint therefore does not set out any offence prima facie. The presumption would be, that the respondents acted or omitted lawfully, in that part of the river, not forbidden to them. All the matters charged may have occurred in that part of the river. All the allegations may be true, and the defendant offer no excuse, and still no offence have been committed. The allegation of contra forman siatuti is not an allegation of fact, but simply a statement of a logical result, a result in law. If the premise is insufficient as in this case, the result does not follow. State v. Boyington, 56 Maine, 512, cited for the State, was clearly a case of proviso, or excuse. It prima facie offence to cast two ballots at a single election under any circumstances. There might, however, have been circumstances excusing it, and which could have been shown in defence. Such circumstances did not need to be negatived. The relative situation in a statute of its different sections, clauses and phrases is not the criterion in determining such a question, though it seems to bo sometimes so stated. It may frequently solve the question, but it does not always do so. The question is, after all, one of legislative intent. Was it the intent to create a general offence, prima facie committible by all persons, at all times, or in all places, or was it the intent to create a limited offence, committible only by particular persons, at particular times or in particular places?' If the former, the excusatory circumstances need not be negatived in the complaint. If the latter, the particulars of person, time or place should be alleged. In the Boyington case, supra, the statute evidently created a general offence, prim,a, facie applicable to all elections and all circumstances. In this case, the statute creates a limited offence, limited by place, as well as in time. The act only becomes a crime when done in a particular place. The complaint should charge the act as done in that particular place. Wharton’s Crim. Law, § 380 ; State v. Godfrey, 24 Maine, 232; U. S. v. Cook, 17 Wall. 168.

Exceptions sustained. Demurrer sustained.

Peters, C. J., Walton, Danforth, Libbey and Foster, JJ., concurred.