The People of the State of New York, Appellant, v. George Montena, Respondent

The People of the State of New York, Appellant, v. George Montena, Respondent. Third Department, June 29, 1910. Forest, Fish and Game Law—transporting fish — failure properly to mark package. Where it appears that defendant sent his son to an express office with a package containing fish for which a closed season is provided; that the consignor’s name was not on the package and that there was no mark to show what" it contained, he is liable for a penalty for receiving for transportation or for assisting in transporting the fish in violation of section 103 of the Forest, Fish and Game Law. Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 20th day of January, 1910, upon-the decision of the court rendered after a trial at the Washington Trial Term," a jury having been waived. Joseph B. McCormick, for the appellant. O. A. Dennis, for the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: The action was brought to recover a penalty for transporting fish and causing them to be transported in- violation of section 103 of the Forest, Fish and Game Law (Laws of 1908, chap. 130, § 103). This section prohibits the transportation of any birds or fish, for which' a close season is provided, in any package unless the kind and number of the birds of.fish shall be plainly marked on the outside of the package, together with the names of the consignor and consignee, the initial point of billing and the destination. It also provides that the reception by any person or common carrier of any such birds, or fish for shipment in an unmarked package shall constitute a violation of this section - by such person or common carrier. By subdivision 7 of section 240 of this statute a person who' counsels, aids or assists in the violation of any of the provisions of this statute is deemed to have incurred the penalties provided in the act against the person guilty of such violation. It appeared upon the trial that on the 31st day of December, 1908, the defendant sent his son to the National'Express office with a package containing fish for which a- closed season is provided, to be transported to Whitehall, 27. T.; that the consignor’s name was not on the package and there was no mark on the outside to show what it contained. The express company received the package and transported it to Whitehall, where 'it was seized by the forest, fish and game protector. The court found these facts, but held that the defendant did not transport the fish within the intent and meaning of the statute. ■ I think that the term “transport,” as used in the statute, includes a shipment or delivery to á common carrier. -If, however, we assume that the word “ transport ” does not imply shipment or forwarding, the evidence in this case quite'satisfactorily establishes the fact that the defendant concurred in the commission of the ofíense. He did an act essential to the accomplishment of it, and hence he aided and assisted , in the violation of the statute and incurred the penalty provided. -. The judgment. should, therefore, be reversed and a new. trial granted, with costs to appellant to abide the event. All concurred. Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.