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61 Vt. 346

State v. Smith

Supreme Court of Vermont

Decided January 15, 1889

Supreme Court of Vermont · decided 1889-01-15

<p>No. 73, Acts of 1884. Pish. No. 245, Acts of 1884. Pleading..</p> <p>1. An information based on s. 7, No. 73, Acts of 1884, need not aver the destruction of the fish. It is the taking, not .the destruction, which is-prohibited.</p> <p>2. Granting that Nos. 73 and 243 should be so construed together that fishing with hook and line is not prohibited in Lake Bomoseen, still the-information need not negative the fact that the taking averred was-with hook and line. The provision in the last mentioned act would be-mere matter of defense.</p>

Cited by 3 later decisions — most recently November 1914

3 state decisions

Relies on State v. Freeman · State v. Hodgdon

Good law ✅— No negative treatment on recordhow we know

Decided 1889-01-15

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¶1The opinion of the court was delivered by

Rowell, J.

¶2This information is founded on s. 7, No. 73 of the St. of 1884, which imposes a fine for taking or catching pond-pickerel from any of the waters of this State, public or private, between certain dates. No. 245 of the same statute, which *347is an act for “ the protection of fish in Lake Bomoseen andInman Pond,” was approved the same day that No. 73 was, and' provides that, that act shall not be construed to prohibit fishing - in the last-mentioned waters at any time with hook and line.

¶3The respondent claims that the taking and catching prohibited! by No. 73 is a taking and catching that destroys the fish, and that the information should have averred such destruction. But.' it is obvious that this is not what the statute means. Its purpose-is, to better stock the waters of the State with the fish named in.the act, and therefore they are protected during the closed season, and the taking of them prohibited, irrespective of what is-done with them after they are taken.

¶4The respondent also claims that said acta áre in pari materia, and should be construed together, and that under No. 245, fishing in Lake Bomoseen with hook and line is lawful at all times, of year, and that therefore this information should have negatived the taking of these fish in that way.

¶5But if his claim as to the construction of the acts is sound,. his conclusion is not. The provision in the last-mentioned act, that it shall not be construed to prevent fishing with hook and line, is not descriptive of the offense nor a part of its definition,, and therefore catching with hook and line is but matter of' defense, and need not be negatived in the information. Thus,, a statute made the giving away of intoxicating liquor an offense.. A subsequent statute qualified the words £! give away ” by enacting that they should not be construed to apply to giving away-under certain circumstances. Held, that the qualification need-' not be negatived. State v. Freeman, 27 Vt. 523. Again, a statute defined who should be deemed a peddler, and in the same section provided that the section should not be construed to extend to-certain articles. Held, that the proviso need not be negatived,, as it was mere matter of defense. State v. Hodgdon, 41 Vt. 139.

¶6Ajjirmed and remanded.

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